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2019 Supreme(Mad) 281
IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. Sathish Kumar, J.
Kaliannan – Petitioner
Versus
A. Kandasamy – Respondent
CRP(NPD) No. 2789 of 2013 & M.P. No. 1 of 2013
Decided On : 16-02-2019
For the Petitioner:N. Manokaran, Advocate.
For the Respondent:P. Valliappan, Advocate.
The court applied a liberal approach in delay condonation cases and attributed knowledge to the defendant through his counsel, leading to the decision to set aside the trial court's order.
Headnote:
Delay Condonation - Civil Procedure - Order IX Rule 13 - Summary Judgment
Fact of the Case:
The defendant filed a revision petition against the dismissal of the application to set aside an exparte decree. The defendant denied executing the promissory note and claimed that it was fabricated by the plaintiff. The delay in filing the set aside petition was 1343 days, and the trial court dismissed the petition. The defendant argued that the delay was due to lack of notice from the transferee court. The plaintiff contended that the delay was not properly explained and should not be condoned.
Finding of the Court:
The court found that the defendant was aware of the case proceedings through his counsel and should have explained the delay. However, considering the nature of the defense raised, the court decided to set aside the trial court's order on payment of costs by the defendant and directed the trial court to dispose of the petition and the suit within specified timeframes.
Issues: Delay condonation, lack of notice from transferee court, nature of defense raised by the defendant
Ratio Decidendi: The court applied a liberal approach due to the nature of the defense raised by the defendant and attributed knowledge to the defendant through his counsel. The court decided to set aside the trial court's order on payment of costs by the defendant and directed the trial court to dispose of the petition and the suit within specified timeframes.
Final Decision: The Civil Revision Petition was disposed of with the above observations, and no costs were awarded. The connected civil miscellaneous petition was closed.
1. Revision petition filed against orders passed by the trial court, dismissing the application, filed to condone the delay of 1343 days in filing the application to set aside the exparte decree dated 20.12.2007.
2. The revision petitioner is the defendant in the original suit. The respondent/plaintiff has filed a suit for recovery of a sum of Rs.50,000/- on the basis of the promissory note executed by the defendant. The revision petitioner/defendant denied the execution of the suit promissory note and passing of consideration. He also contended that earlier occasions, he borrowed money from the plaintiff and the same were discharged by him, however, the suit promissory note has been fabricated by the plaintiff for the purpose of the filing the present suit.
3. In the suit, the defendant filed his written statement on 14.03.2002 and thereafter, the suit was dismissed for default on 14.03.2002. It is the contention of the revision petitioner/defendant that, to restore the suit, application had been filed and the same was allowed on 31.10.2007 for non filing of counter. He also contended that, the case bundle was returned to him by his counsel in the year 2002 and hence, he was not informed about the stage of the case by his counsel. His further contention is that, meanwhile, the suit was transferred from the file of the Sub Judge, Sankagiri to the file of the District Munsif, Tiruchengode. According to the revision petitioner, no notice was served on him by the transferee court and only after receipt of notice in the execution petition, he came to know that he was set exparte 11.12.2007 and exparte decree was passed on 20.12.2007. Therefore, there occurred a delay of 1343 days in filing the set aside petition.
4. The contention of the respondent/plaintiff is that, the allegation of the petitioner that immediately after dismissal of the suit for default, he took the bundle from his counsel is false. In fact, the same advocate was continued to appear on behalf of the petitioner and he took notice of hearing of set aside petition and during trial, he also made an endorsement that "with objection" the documents may be marked on the side of the plaintiff. Further, since the defendant had not appeared for several adjournment, he was set exparte, during the course of cross examination of plaintiff side witness and hence the delay cannot be condoned.
5. After analysing the evidence on record, the trial court dismissed the petition. Against which the revision was came to file.
6. Heard the learned counsel appearing for the revision petitioner as well as the respondent.
7. The learned counsel appearing for the revision petitioner would submit that the petitioner/defendant had promptly filed his written statement and thereafter, the suit was dismissed for default and then restored to file after lapse of 5 years. He would further submit that the suit had been transferred to the District Munsif Court, Tiruchengode, however, no notice was served on him by the transferee court. Therefore, the delay is bonofide and it should be condoned and the petitioner has valid defence to defend the suit and his substantial right cannot be defeated at this stage.
8. Per contra, the learned counsel appearing for the respondent would contend that, the counsel for the petitioner was served notice of hearing and if really the case bundle was returned to the petitioner/defendant, at the time of receiving notice of hearing, the counsel would have made an endorsement to that effect. Hence, the contention of the petitioner that since he took the case bundle from his counsel, he has no knowledge about the exparte decree, cannot be countenanced. His further contention is that the delay has not been properly explained and there is no bonafide reason to condone the delay and hence, he prayed for dismissal of the revision petition.
9. Of course, it is the duty of the petitioner/defendant to explain each and every day delay. Here, the delay is 1343 days in filing the
