No sufficient cause shown by the appellant for not appearing before the court when the suit was posted for hearing. When the defendant has remained absent when the suit was called and there was no sufficient cause shown for taking Blood pressure treatment by examining the Doctor or by producing documentary evidence, such as medical reports or any oral or documentary evidence in support of the contentions made in the petition, the lower court has come to the conclusion that the present case is not the fit one to set aside the decree, in which exparte decree was passed- Summon was not duly served and the same does not fall within the provision of Order 9 Rule 13 Civil Procedure Code-When there was no sufficient cause shown for not representing papers within the said time and after 11 months-. The appellant has belatedly numbered the petition and the same could not be encouraged.

JUDGMENT :

(Prayer: Civil Miscellaneous Appeal is filed under Order XLIII Rule 1 of Civil Procedure Code to set aside the Fair and Final order dated 04.07.2017 passed in I.A.No.293/2016 in O.S.No.160/2013 on the file of the court of II Additional District Judge at Salem by allowing the present appeal.)

1. The present Civil Miscellaneous Appeal has been filed to set aside the order dated 04.07.2017 passed in I.A.No.293/2016 in O.S.No.160/2013 on the file of II Additional District Judge, Salem by raising various grounds.

2. According to the appellant, the suit, viz., O.S.No.160 of 2013 was filed by the respondent for specific performance and the appellant is the defendant in the suit. The suit was decreed exparte on 31.10.2014. The appellant had filed a petition in I.A.No.293 of 2016 on 25.11.2014 under Order 9 Rule 13 and Section 151 of Civil Procedure Code seeking to set aside the exparte order passed on 31.10.2014 and the same is within the limitation period of 30 days. The said petition was returned to the appellant on the ground that notice to other side was not served and he could not represent the same, because he was not aware of the fact. In the meanwhile, the respondent has filed Execution Petition and thereafter, it came to the knowledge of the learned counsel for the appellant and he represented the said peition stating that when the above case is posted for trial, the appellant was admitted in hospital and was taking medical treatment for Blood Pressure. Since Blood Pressure did not come down, he was bed ridden for one month and he recovered partly, then, he came to know that and the said exparte decree of the suit was decreed on 31.10.2014.

3. It is the further case of the appellants that in the said I.A.No.293 of 2016, the respondent/plaintiff has filed a counter stating that the averments in the affidavit filed by the appellant/defendant are false and incorrect. It is true that the defendant has filed a written statement and when the matter was listed for trial on 18.09.2014, there was no appearance either by the appellant or by his counsel, hence the petition to set aside the exparte decree was not ordered. Further, the counter would proceed to state that the averments of appellant that he had gone to medical treatment for either B.P. or was bed ridden for one month are all false. He has also submitted that originally the respondent/plaintiff has filed a suit for specific performance on 07.06.2013 and the same was decreed on 31.10.2014 and the respondent/plaintiff has paid the balance sale price.

4. Subsequently, the respondent/plaintiff has filed a Execution Petition No. 290 of 2015 for execution of Sale deed dated 22.07.2015 and the same was taken on file on 28.09.2015 and the same was ordered in favour of the respondent/plaintiff. The court directed him to produce non-judicial stamp papers for execution of sale deed on 22.08.2016. As per the said order, the respondent/plaintiff also submitted non-judicial stamp papers for a sum of Rs.15,05,000/- and after execution of sale deed by the Court, the appellant has prayed to set aside the petition, which was filed by him on 25.11.2014 to set aside the exparte decree. At that time, no notice was given to the respondent/plaintiff and it was returned and he has represented the same on 22.08.2016 only after execution of sale deed with an intention to drag on the proceedings. Further, without giving any notice to the respondent/plaintiff, the appellant has filed the petition and has given notice to the other side only on 29.10.2015, after a lapse of one year and had numbered it on 15.09.2016, after two years and the matter was listed on 20.10.2016 after execution of sale deed by the Court.

5. According to the respondent /plaintiff, only to drag on proceedings, the appellant has represented the same after two long years and after knowing very well that the sale deed has been executed, the same advocate, who appeared before the suit proceedings had appeared in the E.P. Proceedi