M.Moorthy,S/O.Malaiyappa v. M.Thangamani,W/O.Murthy
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 25.01.2018
CORAM
THE HON'BLE MR. JUSTICE M.DURAISWAMY C.M.A.No.2752 of 2016 and C.M.P.No.19899 of 2016 M.Moorthy ... Appellant Vs.
M.Thangamani ... Respondent Civil Miscellaneous Appeal filed under Order 43 Rule 1 (u) of the Civil Procedure Code against the order of remand made in the judgment and decree dated 16.11.2015 made in C.M.A.No.7 of 2015 on the file of the II Additional District Court, Erode, reversing the fair and decreetal order dated 10.09.2014 made in I.A.No.195 of 2013 in O.S.No.517 of 2009 on the file of the Sub Court, Perundurai.
For Appellant : Mr.N.Manokaran For Respondent : Mr.M.Guruprasad
J U D G M E N T
Challenging the judgment and decree passed in C.M.A.No.7 of 2015 on the file of the II Additional District Court, Erode, the defendant has filed the above appeal.
2.The respondent/plaintiff filed the suit in O.S.No.517 of 2009 on the file of the Sub Court, Perundurai claiming maintenance. The appellant is the husband of the respondent. 3.Since the respondent could not appear before the trial Court on 09.04.2010, an exparte decree was passed on 09.04.2010. Thereafter, the defendant filed an application in I.A.No.15 of 2014 to condone the delay of 1319 days in filing the application to set aside the exparte decree. The said application was allowed by the trial Court on 25.02.2014 on condition, the defendant paying a sum of Rs.1,00,000/- towards arrears of
maintenance and a sum of Rs.5,000/- as costs. Aggrieved over the same, the plaintiff preferred a Civil Revision Petition in C.R.P (NPD).No.1065 of 2014 and this Court, by order dated 27.03.2014, confirmed the order of the trial Court and dismissed the Revision. Thereafter, the defendant filed an application in I.A.No.195 of 2014 under Order 9 Rule 13 of the Civil Procedure Code to set aside the exparte decree. After contest, the trial Court allowed the application. Aggrieved over the same, the plaintiff preferred an appeal in C.M.A.No.7 of 2015 before the II Additional District Court, Erode. The Lower Appellate Court set aside the fair and decreetal order passed in I.A.No.195 of 2014 and remitted the matter back to the trial Court for fresh consideration. Aggrieved over the same, the defendant has filed the above appeal.
4.Admittedly, the application under Section 5 of the Limitation Act was allowed by the trial Court, which was also confirmed by this Court in the Civil Revision Petition. When the defendant had satisfactorily explained the reasons for the delay in filing the application giving a cogent reason, which was also accepted by this Court in the Civil Revision Petition, the trial Court has rightly set aside the exparte decree passed against the defendant in I.A.No.195 of 2014. The Lower Appellate Court on an erroneous approach set aside the order passed by the trial Court and remitted the matter back to the trial Court for no valid reason. Infact, the application in I.A.No.15 of 2014 was allowed by the trial Court imposing a condition that the defendant deposits a sum of Rs.1,00,000/- towards arrears of maintenance and a sum of Rs.5,000/- as costs. 5.Mr.N.Manokaran, learned counsel appearing for the appellant submitted that the appellant/defendant had complied with the conditions imposed by the trial Court by depositing the said amounts.
6.Since the appellant/defendant had satisfactorily explained the reasons for his non-appearance on 09.04.2010, the Lower Appellate Court should have confirmed the order passed by the trial Court and set aside the exparte decree dated 09.04.2010. The judgment and decree passed by the Lower Appellate Court are without any basis whatsoever. In these circumstances, the judgment and decree passed in C.M.A.No.7 of 2015 are set aside. The fair and decreetal order passed in I.A.No.195 of 2014 are restored. The exparte decree dated 09.04.2010 passed in O.S.No.517 of 2009 stands set aside. The Sub Judge, Perundurai is directed to dispose of the suit in O.S.No.517 of 2009 on merits and in accordance with law within three months from the date of receipt of a copy of this judgment.
7.With these observations, the Civil Miscellaneous Appeal is allowed. No costs. Consequently, the connected miscellaneous petition is closed.
Sd/- Assistant Registrar(CS VIII) //True copy// Sub Assistant Registrar va To 1.The II Additional District Court, Erode.
2.The Sub Court, Perundurai.
+1cc to Mr.N.Manokaran, Advocate SR.No.60997 +1cc to Mr.M.Guruprasad, Advocate SR.No.6353 C.M.A.No.2752 of 2016 and C.M.P.No.19899 of 2016 KS(CO) GN(01/03/2018)