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2019 Supreme(Mad) 2851
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
N. ANAND VENKATESH, J.
Ramakrishnan Nair & Ors. – Petitioners
Versus
Muthaian – Respondent
C.R.P.(PD)(MD)No.648 of 2012, M.P.(MD).No.1 of 2012
Decided On : 19-09-2019
Advocate Appeared:
For the Petitioners: Mr. M. V. Venkataseshan
For the Respondent: Mr. C. K. M.Appaji
Headnote:
Civil Procedure Code,1980 - Section 115 - Order XX - Payment of cost - Delay petition - Civil revision petition has been filed by petitioners against fair and final order passed by court below dismissing application filed to condone delay in filing a petition to set aside ex-parte decree respondent has filed suit against petitioners for relief of specific performance - This suit was decreed ex-parte by judgment and decree case of petitioners that came know about ex-parte decree passed against them only when they received notice in execution proceedings Immediately thereafter they have filed petition to set aside ex-parte decree along with a condone delay petition to condone delay in setting aside ex-parte decree - Court below has dismissed petition on ground that petitioners were aware about suit that was filed by respondent even in and therefore it was not right on part of petitioners to state they became aware about the suit only court below found that petitioners have not shown sufficient cause for condoning delay – Held, Court finds force in submissions made by counsel for petitioners - As rightly contended by counsel for the petitioners Division this Court in judgment cited supra has categorically held that even an ex-parte judgment will have to reflect application of mind by referring to pleadings and evidence - Division Bench has also proceeded to that there are two remedies that are available defendant as against ex-parte decree - One is to file an appeal and other is file petition to set aside ex-parte decree - In both cases nature of ex-parte judgment that was passed by trial Court will have be assessed before coming to final conclusion substantial right of parties respondent is agreement holder and he has sought for relief of specific performance based on the agreement. Since it involves substantial right of the parties it would be better if the suit is decided on merits - such circumstances this court has no hesitation to interfere with fair and final order passed by court is allowed subject to the condition that petitioners towards cost to respondent within a period of three weeks from date of receipt of copy of this order - On such payment of cost a memo shall be filed before court below and the court below shall allow petition to set ex-parte decree - Thereafter the suit shall be decided on merits within a period of three months - If cost is not paid by petitioners within the time stipulated by this Court below shall not thereafter entertain the petition for setting aside the ex-parte decree and the ex-parte decree will become final – Consequently connected miscellaneous petition is closed - petition allowed
ORDER :
Prayer : Civil Revision Petition filed under Section 115 of the Code of Civil Procedure, against the fair and decreetal order passed in I.A.No.219 of 2010 in O.S.No.31 of 2006 on the file of the Sub Court, Padmanabhapuram, dated 02.02.2012.
1. This civil revision petition has been filed by the petitioners against the fair and final order I.A.No.219 of 2010 in O.S.No.31 of 2006, passed by the court below dismissing the application filed to condone the delay of 1053 days in filing a petition to set aside the ex-parte decree, dated 22.03.2007.
2. The respondent has filed the suit against the petitioners for the relief of specific performance. This suit was decreed ex-parte by judgment and decree, dated 22.03.2007.
3. It is the case of the petitioners that they came to know about the ex-parte decree passed against them only in the year 2009, i.e., when they received the notice in the execution proceedings. Immediately thereafter, they have filed the petition to set aside the ex-parte decree along with a condone delay petition, to condone the delay of 1053 days in setting aside the ex-parte decree.
4. The Court below has dismissed the petition on the ground that the petitioners were aware about the suit that was filed by the respondent even in the year 2006 and therefore it was not right on the part of the petitioners to state that they became aware about the suit only in the year 2009. The court below found that the petitioners have not shown sufficient cause for condoning the delay.
5. The learned counsel for the petitioner submitted that the ex-parte judgment that was passed by the court below is not in accordance with Order XX of Civil Procedure Code. The learned counsel further submitted that the judgment was passed without any appreciation of evidence and even without the court below coming to a satisfaction that the petitioners were ready and willing to perform their part of contract. The learned counsel in order to substantiate his submissions, relied upon the judgment of the Division Bench of this Court in M/s. Meenakshisundaram Textiles Vs. M/s.Valliammal Textiles Ltd., reported in 2011 (3) CTC 168 and the judgment of the Honourable Supreme Court in Shantilal Gulabchand Mutha Vs. Tata Engineering and Locomotive Company Ltd., and another reported in 2013 (4) SCC 396.
6. Per contra the learned counsel appearing on behalf of the respondent submitted that the petitioners did not approach the court below with clean hands and they made a false statement before the court below to the effect that they became aware about the filing of the suit only during the year 2009 and whereas Exs.R2 and R4 that was relied upon by the court below have clearly shown that the petitioners were aware about the pendency of the suit in the year 2006 itself. The learned counsel further submitted that the court below has given cogent reasons while dismissing the petition and that there are absolutely no grounds to interfere with the same.
7. This Court carefully considered the submissions made on either side and the materials available on record.
8. This Court finds force in the submissions made by the learned counsel for the petitioners. As rightly contended by the learned counsel for the petitioners, the Division Bench of this Court in the judgment, cited supra, has categorically held that even an ex-parte judgment will have to reflect application of mind by referring to the pleadings and the evidence. The Division Bench has also proceeded to hold that there are two remedies that are available to the defendant as against the ex-parte decree. One is to file an appeal and the other is to file a petition to set aside the ex-parte decree. In both cases, the nature of ex-parte judgment that was passed by the trial Court will have to be assessed before coming to a final conclusion. This position has been reiterated by the Honourable Supreme Court in the judgment that has been referred by the learned counsel for the petitioner.
9. The issue involved in
