CRP.NPD.No.610 of 2018

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 09.04.2021

CORAM

THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN

CRP.NPD.No.610 of 2018

and

CMP.No.3202 of 2018

N.Devarajan

... Petitioner

Vs.

C.Babu

... Respondent

PRAYER:

The Civil Revision Petition is filed under Article 227 of the

Constitution of India, to set aside the order passed in I.A.No.778 of 2014 in

O.S.No.269 of 2009 dated 28.04.2017 pending on the file of the

Subordinate Judge at Tambaram by allowing the Civil Revision Petition.

For Petitioner

: Mr.B.Vijay

Respondent

: Mr.N.Selvaraj

O R D E R

This Civil Revision Petition is directed against the fair and decretal

order passed in I.A.No.778 of 2014 in O.S.No.269 of 2009 dated

28.04.2017 on the file of the learned Subordinate Judge, Tambaram, thereby

allowing the petition to condone the delay in filing the application to set

aside the ex-parte decree.

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CRP.NPD.No.610 of 2018

2. The petitioner is the plaintiff and the respondent is the defendant.

The petitioner filed a suit for recovery of money. While pending the suit, the

respondent after receipt of notice, failed to appear before the trial Court and

as such, he was set ex-parte on 20.01.2010. He filed a petition in I.A.No.735

of 2010 to set aside the ex-parte order and the same was allowed. The

respondent also filed a written statement along with the petition to set aside

the ex-parte order. Thereafter, the trial commenced and the petitioner was

examined as P.W.1 and Exs.A.1 to A.3 were marked. Thereafter, the suit

was posted for cross examination. The respondent did not cross examine

P.W.1 on several occasions and at the request of the respondent, the suit

was adjourned on so many occasions. Thereafter, he was absent before the

trial Court and as such, again he was set ex-parte and the ex-parte decree

was passed on 26.06.2013. Thereafter, the respondent come forward with

the petition to set aside the ex-parte decree with a delay of 364 days.

3. On a perusal of the affidavit filed in support of the petition to set

aside the ex-parte order in I.A.No.735 of 2010 and the affidavit filed in

support of the present petition to condone the delay of 364 days in filing the

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CRP.NPD.No.610 of 2018

application to set aside the ex-parte decree in I.A.No.778 of 2014, the

averments are one and the same. The relevant portion of both affidavits as

follows:-

“4. I submit that I have receive private notice,

however I have not received any application or plaint in

the above suit and several times my counsel represented

before this Hon'ble Court to furnish plaint copy but I

could not get it and I was unable to file the written

statement, moreover I am aware of the relief sought for by

the plaintiff in the suit.

5. I submit that the above suit was called and I was

called absent and set ex-parte and ex-parte order was

passed against me. I submit that I working in Fire Service

Department I was posted in North Madras and I have to

attend duty in the every day morning at 6.00 a.m.,

therefore I could not contact my counsel and filed the

written statement in time. The non-filing of written

statement is neither wilful nor wanton, but due to the

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CRP.NPD.No.610 of 2018

reasons stated above. Hence it is just and necessary to set

aside the ex-parte order passed against me and permit me

to file written statement and contest the case on merits.

Otherwise, I will be put to irreparable loss and hardship.

No prejudice would be caused to the respondent/plaintiff

in this application being allowed.

4. I submit that I have receive private notice,

however I have not received any application or plaint in

the above suit and several times my counsel represented

before this Hon'ble Court to furnish plaint copy but I

could not get it an