Back
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
R.Vijayakumar, J.
Febrina Indra Neela @ Indra Febrina Thomas - Petitioner
Versus
Jebasingh Jacob @ Sankar - Respondent
C.R.P.(NPD)(MD).No.351 of 2025 and CMP(MD).No.2009 of 2025
Decided On : 24-03-2025
(A) Code of Civil Procedure, 1908 - Order 9 Rule 13 and Order 17 Rule 2 - Delay in filing application to set aside exparte decree - Defendant's application to condone delay of 145 days was allowed by trial Court, which found decree to be exparte despite defendant having cross-examined plaintiff - Plaintiff contended decree was on merits, as evidence was presented - Court held that cross-examination does not equate to leading evidence, and since no evidence was led by defendant, decree remains exparte. (Paras 5, 6, 10, 15)
(B) Evidence - Substantial Evidence - Court clarified that cross-examination alone does not constitute substantial evidence for the defendant, who failed to present any evidence - Reliance on precedents established that absence of evidence leads to exparte judgments. (Paras 13, 14)
Facts of the case:
The plaintiff sought ejectment and damages from the defendant, who was set exparte leading to a decree. The defendant later sought to set aside the decree citing counsel's absence as the reason for not appearing.
Findings of Court:
The trial Court correctly identified the decree as exparte due to the defendant's failure to present evidence.
Issues: The key issue was whether the cross-examination of the plaintiff constituted substantial evidence from the defendant's side.
Ratio Decidendi: The court determined that mere cross-examination does not fulfill the requirement of leading evidence, thus supporting the trial Court's decision to treat the decree as exparte.
Result: Civil Revision Petition dismissed.
ORDER :
R.Vijayakumar, J.
The plaintiff in O.S.No.362 of 2012 on the file of the District Munsif Cum Judicial Magistrate Court, Radhapuram is the present revision petitioner challenging the order of the trial Court wherein the trial Court has allowed an application to condone the delay of 145 days in filing an application to set aside the exparte decree.
2.The revision petitioner herein has filed the above said suit for the relief of ejectment and for a direction to the defendant to pay a sum of Rs.600/- towards damages for use and occupation of the schedule building till surrender of possession.
3.The defendant was set exparte and an exparte decree came to be passed on 22.06.2015. The plaintiff had filed E.P.No.39 of 2015. The defendant has chosen to file the present application to condone the delay of 145 days in filing an application to set aside the exparte decree. According to the defendant, he had engaged a counsel at Tirunelveli to attend his case at Valliyur. Since the said counsel could not attend the hearing on the said date, an exparte decree came to be passed. Only when he received a notice in the execution proceedings, he came to know about the exparte decree and immediately, he has filed the application to set aside the exparte decree.
4.The said application was resisted by the plaintiff on the ground that the delay has been caused due to the willful negligence on the part of the defendant. That apart, the decree is not an exparte decree, but a decree on merits. Further, the order of delivery has also been passed. Therefore, in such circumstances, the application to condone the delay is not maintainable.
5.The trial Court after considering the submissions on either side, has proceeded to arrive at a finding that the decree is an exparte decree and condoned the delay on payment of cost of Rs.1000/-. Challenging the same, the present revision petition has been filed by the plaintiff.
6.According to the learned counsel for the petitioner/plaintiff, the decree is not an exparte decree. PW1 was cross examined by the defendant. Thereafter, PW2 was not cross examined and an exparte decree came to be passed. The defendant has already cross examined PW1. Hence, there was substantial portion of evidence on the part of the defendant and therefore, the decree cannot be considered to be an exparte decree. The only option open to the defendant is to file an appeal and therefore, the present application to condone the delay of 145 days, treating the said decree as an exparte decree is not maintainable.
7.The learned counsel for the petitioner had relied upon a judgement of the Hon'ble Supreme Court in Civil Appeal No.5155 of 2023 dated 16.08.2023 ( Y.P.Lele Vs. Maharashtra State, Electricity Distribution Company Ltd and others ) and contended that when the plaintiff is cross examined, it should be treated that the substantial portion of defendant's evidence is already on record. He also relied upon a judgment of the learned Single Judge of this Court in CRP(MD).No.995 of 2019 dated 11.09.2023 (S.Kishore Kumar Vs.N.Sekar) wherein in paragraph No.14, this Court has held that when the defendant has cross examined the plaintiff, it should be considered to be a substantial evidence on behalf of the defendant.
8.Per contra, the learned counsel for the respondent/defendant had contended that the cross examination of the plaintiff by the defendant cannot be considered to be substantial portion of the evidence on the side of the defendant. The defendant has not entered into the box at all. He relied upon a judgment of the Hon'ble Supreme Court reported in 2019 (4) CTC 122 (G.Ratna Raj (D) by Lrs. Vs. Sri Muthukumarasamy Permanent Fund Ltd., and another) wherein after closure of the plaintiff's side evidence, the defendants have not let in any evidence and they were set exparte and an exparte judgment came to be passed. The Hon'ble Supreme Court was pleased to hold that the said judgment is an exparte judgment. The learned counsel for the petitio
Cross-examination of a plaintiff does not constitute substantial evidence for the defendant; absence of evidence leads to an exparte decree.
A party seeking condonation of delay must show sufficient cause; mere procedural deficiencies in prior judgments do not automatically justify delay.
The sufficiency of cause for condoning extensive delay must be adequately demonstrated, with reliance on established legal precedents.
The court established that 'sufficient cause' under Order IX Rule 13 C.P.C. must be liberally construed to ensure justice, allowing for the setting aside of ex-parte decrees when valid reasons for no....
The court emphasized that delay in filing to set aside an ex parte decree must be justified with valid reasons, and a liberal approach does not permit fanciful explanations.
The court held that sufficient cause must be shown to condone delay under the Limitation Act, and mere negligence of legal counsel does not qualify as such.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
