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2021 Supreme(Online)(MAD) 39984
HIGH COURT OF MADRAS
S. Kannammal, J
K. Dhamodharan – Appellant
Versus
Janakiraman – Respondent
C.R.P.No.378 of 2017 | C.M.P.No.1657 of 2017
For the Appellants/Petitioners: M.S. Subramanian
For the Respondents: V.G. Suresh Kumar
A defendant set ex parte can seek to set aside a decree under Order IX Rule 13 CPC even if the decree was passed on merits against other contesting defendants. Delay condonation under Section 5 of the Limitation Act should be approached pragmatically to ensure substantial justice.
Headnote:(A) Constitution of India, Art. 227; Code of Civil Procedure, 1908, O. 9 R. 13, O. 17 R. 2 and R. 3; Limitation Act, 1963, S. 5 - Maintainability of application to set aside ex parte decree - Condonation of delay - In a suit for partition, where the first defendant was set ex parte and the suit was subsequently decreed on merits against other contesting defendants, the first defendant is still entitled to file an application under Order IX Rule 13 of CPC to set aside the ex parte decree against him (Paras 17, 20 and 22).
(B) Order XVII Rule 2 and 3 of CPC - Scope and Application - A court may proceed under Order 17 Rule 2 if parties fail to appear. However, the Explanation to Rule 2 allows the court to proceed as if the party were present only if a substantial portion of the evidence of that party has already been recorded. If this condition is not met, the decree is an ex parte decree and not a decree on merits, making an application under Order IX Rule 13 maintainable (Paras 12, 13 and 16).
(C) Limitation Act, S. 5 - Condonation of Delay - 'Sufficient cause' for delay should be interpreted with pragmatism and a justice-oriented approach rather than through technical detection of daily delays. Rendering substantial justice is the paramount consideration, and a lenient view may be taken to subserve the cause of justice (Para 23).
Facts of the case:
The respondent filed a suit for partition of joint family properties. The petitioner (1st defendant) was set ex parte. The suit was decreed on 18.10.2010 after contest by the 2nd and 3rd defendants. The petitioner subsequently applied to set aside the ex parte decree with a delay of 1235 days, attributing the delay to liver problems and lack of communication from his counsel. The Subordinate Judge, Madurantakam, refused to condone the delay, which led to the present revision petition.
Findings of Court:
The court found that since the trial had not commenced when the petitioner was set ex parte, the decree was an ex parte decree regarding the petitioner, despite being a decree on merits for the other defendants. It further held that the petitioner should be given an opportunity to contest the case on merits, and the delay should be condoned to ensure justice.
Issues: Whether an application under Order IX Rule 13 CPC is maintainable when a decree is passed on merits against other defendants, and whether the delay of 1235 days could be condoned under Section 5 of the Limitation Act.
Ratio Decidendi: The court ruled that a defendant set ex parte can maintain an application under Order IX Rule 13 CPC regardless of whether other defendants contested the suit. It also affirmed that 'sufficient cause' for condoning delay should be viewed pragmatically to serve the ends of justice rather than strictly technically.
Result: Civil Revision Petition allowed on condition of payment of costs.
ORDER
This Civil Revision Petition has been filed seeking to set aside the order dated 21.10.2016 whereby the learned Subordinate Judge, Madurantakam, has refused to condone the delay of 1235 days in filing the application to set aside the exparte decree dated 18.10.2010 made in O.S.No.22 of 2010 and thereby dismissed the delay condonation application.
2. The brief facts leading to the filing of the civil revision petition are as follows:- The respondent is the plaintiff and the petitioner is the 1st defendant in the suit. The suit was filed for preliminary decree for partition of suit properties into four equal shares and allotment of one such share to the respondent. According to the respondent, the defendants 1 and 3 and herself are the absolute owners of the suit properties as they were purchased from out of joint family income. Since the petitioner is the elder member of the family, suit properties described as Item Nos.1 to 6 have been purchased in his name under different sale deeds. Therefore, they are entitled to equal share in the suit properties. When the respondent demanded her share, the petitioner and defendants 2 and 3 in the suit refused to partition the suit properties and hence the suit.
3. It appears that the defendants 2 and 3 have filed their written statement sailing with the plaintiff and claiming 1/4 share each in the suit properties. However, as the 1st defendant had remained set ex parte despite summons, he was set exparte. The plaintiff let in evidence, both oral and documentary, and, on the side of the defendants 2 and 3, the 2nd defendant was examined as D.W.1. The trial court, after having considered the oral and documentary evidence, decreed the suit and pass a preliminary decree for partition of the suit properties as prayed for. Thereafter, the respondent filed an application for final decree.
4. The case of the petitioner in I.A.No.351 of 2015 is that in 2010 he received suit summons and immediately, he engaged a counsel to defend the suit. Thereafter, he did not receive any information from his counsel and he was under the bonafide belief that suit was pending. In the mean time, he fell ill due to liver problem and therefore, he was unable to contact his counsel. Recently, when he visited a marriage of one of his close relatives, he came to know that the suit was decreed exparte on 18.10.2020 and thereafter, he had also got it confirmed the same from his counsel. Hence, there had occurred delay of 1235 days in filing the application to get the exparte decree set aside. If the delay is condoned, no prejudice would be caused to the respondent, but on the other hand, if the delay is not condoned the petitioner would be seriously prejudiced.
5. The respondent vehemently opposed the delay condonation petition inter alia contending that that petitioner was not diligent in defending the suit. The suit was pending for a long time. The respondent denied that the petitioner could not appear before the court as he was suffering from liver problem and came to know about the ex parte decree only when he visited a marriage function of his relative. On receiving summons, the petitioner appeared himself in the court on day fixed for hearing and he did not engage any counsel thereafter to defend him. The defendants 2 and 3 alone had contested the suit. The suit was decreed on 18.10.2010 and a final decree application was filed in I.A.No.78 of 2011 wherein notice was sent to the petitioner and the defendants 2 and 3. Again the defendants 2 and 3 alone contested the final decree proceedings. After the Advocate Commissioner was appointed and the properties were inspected by the Advocate Commissioner, the petitioner filed the application seeking to set aside the ex parte decree with enormous delay of 1235 days.
6. The learned Principal District Judge having found that though the petitioner was set ex parte, the suit was decreed on merits after contest by the other defendants and rejected the contention of the pet
