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2024 Supreme(Online)(MAD) 13014
HIGH COURT OF MADRAS
Hon`ble Mr.Justice P. DHANABAL
T.S.RAMAR – Appellant
Versus
AMBUJAM DURAI PANDIAN – Respondent
Defendants must be afforded the opportunity to challenge exparte judgments unless clear, grave procedural misconduct is evident.
Headnote:
Order - Exparte Decree - CPC Order 9 Rule 13 - The court emphasized that a defendant must be given an opportunity to contest an exparte decree, especially if valid reasons for absence can be established, aligning with justice principles.
Fact of the Case:
The appellant, unable to attend court due to urgent work and health issues, faced an exparte decree in a suit. He petitioned to set aside the decree, claiming justified absence, while the respondent contested the claims, asserting the appeal should be dismissed.
Finding of the Court:
The court found that both lower courts failed to provide the appellant an opportunity to present his defense, emphasizing the necessity for a fair chance in line with due process, despite the lack of documentation for the absence.
Issues: Whether the lower courts erred in dismissing the petition under Order 9, Rule 13 without allowing the appellant a chance to contest the decree on its merits.
Ratio Decidendi: The principle that defendants should have a fair chance to contest cases is paramount, and, in the absence of significant procedural faults, dismissals for technical reasons are not justified.
Final Decision: The appeal is allowed, and the exparte decree is set aside.
JUDGMENT
This Civil Miscellaneous Second Appeal has been filed as against the order passed in CMA No.18 of 2015 on the file of the learned Principal District Judge, Thoothukudi,wherein the appellant herein has filed appeal as against the order passed by the trial Court in I.A. No.147 of 1996 in O.S.No.152 of 1989. The trial Court as well as the first appellate Court dismissed the petition filed by the appellant to set aside the exparte decree passed agains the appellant in O.S. No.152 of 1989.
2. For the sake of convenience and brevity, the parties herein after will be referred to as per their status/ranking in the Trial Court.
3. The brief facts of the petition averments before the Trial Court are as follows:
The petitioner is the defendant in the suit. The main suit was posted in the list on 23.06.1996. The advocates were on boycott. Though the petitioner was present the case was adjourned to 03.07.1995 and thereafter the advocate insisted him to appear on 03.07.1995. On 01.07.1995 the petitioner had gone to Madras for some urgent business purpose and thereby he was unable to meet his counsel and he was suffering from ailment and the doctor has advised him to take rest for three days. Therefore he could not meet the counsel on 03.07.1995. Thereafter he contacted his counsel and came to know that the suit was decreed exparte on 04.07.1995. His absence on the date is neither wilful nor wanton and it is beyond his control.
4. The brief facts of the counter filed by the second respondent are as follows:
The reasons stated in the affidavit are all false and on that day the petitioner was loitering in the court premises, thereby the petitionis liable to be dismissed.
5. Before the Trial Court, no witnesses were examined and no documents were marked.
6. After hearing both sides the trial Court dismissed the petition stating that the petitioner has not filed any bus ticket and not filed any medical bills for the treatment taken by the petitioner. The first appellate Court also dismissed the appeal by confirming the order of the trial Court on some grounds.
7.The learned counsel appearing for the appellant would contend that the case was posted for hearing on 03.07.1995 and the petitioner was unable to attend the court due to his travel to Chennai for urgent business purpose and thereafter he was bedridden. Then only he came to know about the stage of the case and the exparte decree was passed against him. Immediately petition was filed on 14.07.1995 and the petition was filed within time but the trial Court dismissed the petition without giving opportunity to the petitioner. The first appellate Court also dismissed the appeal and the suit is one for declaration and injunction and the appellant has good case, thereby opportunity may be given to the appellant. Therefore the order passed by the first appellate Court as well as the trial Court is liable to be set aside by allowing this appeal.
8. The learned counsel appearing for the respondents would contend that the original owner of the suit property is Muthaiah Nadar,S/o. Arunachala Nadar, Perumal Street, Melashanmugapuram, Srivaigunkundam Taluk and he purchased the property through sale deed dated 03.01.1953. The respondents have purchased properties from different persons and the suit was decreed in the year 1995 and the respondents are in possession and enjoyment of the property for the long period and other revenue records were mutated in the name of the respondents. The petitioner is no way connected to the suit property and thereby the present appeal is liable to be dismissed. Further the learned counsel appearing for the respondent relied on the judgment in Bhanu Kumar Jain Vs. Archana Kumar and another reported in AIR 2005 Supreme Court 626.
9. This Court after hearing both sides and upon perusing the documents including the orders of the Courts below framed the following substantial question of law i) Whether the Courts below are correct in law in dealing the order 9 Rule 13 petitio
