Plaintiffs challenged a trial court order restoring a suit for specific performance after setting aside an ex parte decree against the defendant on payment of costs. The High Court found the petition to set aside the decree was filed within time per the trial court's report and the reason for non-appearance was genuine, and dismissed the revision.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C.R.P. No. 3564 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.08.2024
CORAM
THE HONOURABLE MR. JUSTICE P.DHANABAL
C.R.P. No. 3564 of 2022 and C.M.P. No. 18935 of 2022
PRAYER: Civil Revision Petition is filed under Article 227 of the Constitution of India, 1950, to set aside the fair and decreetal order dated 22.06.2022 made in I.A. No. 1 of 2021 in O.S. No. 16 of 2017 on the file of
the III Additional District and Sessions Judge, Erode at Gobichettipalayam.
For Petitioners : M/s. N.Kathiresan for Mr. P.B.Balasubramanian For Respondent : M/s. Zeenath Begum
O R D E R
1/7
C.R.P. No. 3564 of 2022
This Civil Revision Petition has been preferred as against the order dated 22.06.2022 made in I.A. No. 1 of 2021 in O.S. No. 16 of 2017 on the
file of the III Additional District and Sessions Judge, Erode at Gobichettipalayam, wherein, the respondent herein has filed petition before the Trial Court under Order IX Rule 13 of CPC to set aside the exparte decree passed on 11.12.2017. The said petition was allowed by the Trial Court on payment of cost Rs. 3,000/-. Against which, the present Civil Revision Petition is filed.
The petitioners/plaintiffs have filed the main suit for the relief of specific performance of contract and the said suit was posted for filing written statement on 12.10.2017 but the respondent did not appear before the Court and not filed any written statement. Thereby, exparte decree was passed against the respondent on 11.12.2017. The respondent filed petition on 10.01.2018 without giving notice to the petitioners and the same was returned. Thereafter, the respondent without taking any steps filed this petition along with Section 5 of the Limitation Act, 1963 and also filed petition along with Section 148 and 151 of C.P.C. The respondent has filed petition after the
filing of the execution petition in E.P. No. 8 of 2019. In the execution petition, https://www.mhc.tn.gov.in/judis 2/7
C.R.P. No. 3564 of 2022
the respondent was set exparte . The respondent without following up the case wantonly filed this petition to drag on the proceedings. Though, the petitioners raised the above said objections, the Trial Court allowed the petition on payment of cost Rs. 3,000/-. Therefore, the order passed by the Trial Court is liable to be set aside.
and non filing of written statement, the Trial Court has passed exparte decree
3/7
C.R.P. No. 3564 of 2022
on 11.12.2017 and immediately, he filed application to set aside the exparte
decree and the same was returned and thereafter, the same was re-presented and then the petition was kept with the bundle and thereafter, the Court has assigned number only in the year 2021. Thereafter, the petition was heard by the Trial Court and allowed the petition. The reason stated by the respondent is that on the date of hearing, he went for condolence, hence he could not met his counsel to instruct to file the written statement. Thereafter, the respondent filed petition along with the written statement. Therefore, the petition was filed within the time. Therefore, the Trial Court has passed a reasoned order. Hence, the present Civil Revision Petition is liable to be dismissed.
4/7
C.R.P. No. 3564 of 2022
and the Trial Court also filed report by stating that "after the exparte decree passed by the Trial Court, the respondent has filed application to set aside the exparte decree under Order IX Rule 13 on 10.01.2018 within the time, the said petition was returned for certain reasons, subsequently, the said petition was re-presented in time on 28.04.2018. Again the petition was returned and the same was re-presented on 30.07.2018, thereafter the petition was taken on file on 31.03.2021 in I.A. No. 1 of 2021. Thereafter, the petition was allowed on payment of cost of Rs. 3,000/- and the same was deposited into the Court." Therefore, the petition was filed in time as per the report filed by the Trial Court. The reasons stated in the affidavit is that on the date of hearing, the respondent was unable to appear due to condolence and thereafter, he approached his counsel and know about the stage of the case. Therefore, the reason stated by the respondent is genuine and acceptable one. In this context, the Trial Court also in the order observed that it is the duty of the Court to give an opportunity to the parties to defend their valid case, though, the petitioners have objected this petition, the Court should liberally approach in allowing the such kind of petitions and allowed payment of cost Rs. 3,000/-. Therefore, the abovesaid order passed by the Trial Court is a well reasoned order and it does not warrant interference.
5/7
C.R.P. No. 3564 of 2022
this Civil Revision Petition has no merits and deserves to be dismissed. Accordingly, this Civil Revision Petition is dismissed. No costs. Consequently, the connected Miscellaneous Petition is closed.
01.08.2024
Index : Yes/No Speaking order : Yes/No NCC : Yes/No pal To
The III Additional District and Sessions Judge, Erode at Gobichettipalayam.
6/7
C.R.P. No. 3564 of 2022
P.DHANABAL, J.,
pal
C.R.P. No. 3564 of 2022
01.08.2024
7/7
1 issue framed by the court
Whether the trial court rightly allowed the defendant's application under Order IX Rule 13 CPC to set aside the ex parte decree despite delay in numbering of the petition.
4 provisions across 3 enactments
P.Anandan
K.Kaviyarasu
V.M.Thirumoorthi
P.Dhanabal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
