← Library
Madras High CourtCRP/2458/2016allowed

B.Dhanalakshmi v. Maruthamuthu

2016-08-24Honourable Mr Justice M.Duraiswamy6 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 24.08.2016

CORAM

THE HONOURABLE THIRU JUSTICE M. DURAISWAMY C.R.P.(NPD)No.2458 of 2016 and CMP No.12799 of 2016 B. Dhanalakshmi ..... Petitioner vs Maruthamuthu .... Respondent Civil Revision Petition filed under Article 227 of the Constitution of India to set aside the fair and decreetal order dated 29.03.2016 in I.A.No.588 of 2014 in O.S.No.933 of 2011 on the file of II Additional Subordinate Judge, Coimbatore.

For petitioner :

Mr.K. Sathiyamurthi For respondent :

Mr.J. Hariharan for Mr.V. Nicholas

O R D E R

Challenging the fair and final order, passed in I.A.No.588 of 2014 in O.S.No.933 of 2011 on the file of II Additional Subordinate Court, Coimbatore, the defendant has filed the above Civil Revision Petition. 2.

The plaintiff filed a suit in O.S.No.933 of 2011 for recovery of money. Since the defendant failed to appear before the trial Court, he was set ex-parte and an ex-parte order was passed on 03.07.2012. Thereafter, the defendant filed an application in I.A.No.588/2014 to condone the delay of 605 days in filing the petition to set aside the exparte decree. 3.

After contest, the trial Court allowed the application on 23.11.2015 on payment of cost of Rs.2,000/- on or before 07.12.2015. Subsequently, at the instance of the defendant, time was extended for payment of the cost upto 28.03.2016. 4.

It is the case of the petitioner that he tendered the cost amount to the counsel for the respondent on 17.03.2016, however, the learned counsel, appearing for the respondent, refused to receive

the same, stating that the respondent is going to prefer an appeal as against the order passed in I.A.No.63/2016.

5.

Subsequently, when the application came up for hearing before the trial court on 29.03.2016, since the counsel for the petitioner/defendant was not present, the same was dismissed for default. Further, the trial Court recorded that the cost was not paid by the petitioner/defendant.

6.

When the petitioner/defendant had tendered the sum of Rs.2,000/- to the counsel for the respondent/plaintiff, the same was refused by the counsel, stating that the respondent is going to file an appeal. This fact was also brought to the notice of the trial Court by the respondent/plaintiff by way of a Memo. The trial Court, without considering the Memo, has dismissed the petition. Challenging this order, the defendant has filed the above Civil Revision Petition. 7.

When the matter is taken up for hearing, the learned counsel for the respondent, on instructions, submitted that the respondent is willing to receive the cost of Rs.2,000/- from the

petitioner and in such an event, the application in I.A.No.588/2014 can be allowed and the trial Court may be directed to dispose of the suit within a stipulated time.

8.

In view of the submissions made by the learned counsel on either side, the order passed in I.A.No.588/2014 dated 29.03.2016 is set aside on condition that the petitioner/defendant paying a sum of Rs.2,000/-(Rupees two thousand only) to the respondent within one week from the date of receipt of a copy of this order, failing which, the petition shall stand dismissed automatically without any reference. 9.

It is made clear that the petitioner is at liberty to pay the cost amount to the counsel appearing for the respondent in this Civil Revision Petition before this Court within the stipulated time. With these observations, the Civil Revision Petition is allowed. The II Additional Subordinate Court, Coimbatore is directed to consider the petition, filed under Order 9 Rule 13 of the Civil Procedure Code, by the defendant and dispose of the same at the earliest. The trial Court is also directed to dispose of the suit in O.S.No.933/2011, on merits and in accordance with law, within four months from the

date of the order passed in the application, filed under Order 9 Rule 13 of the Civil Procedure Code.

No costs. Consequently, connected CMP is closed. 24-08-2016 sr Index:no website:yes To The II Additional Subordinate Judge, Coimbatore.

M. DURAISWAMY,J., sr C.R.P.(NPD)No.2458/2016 24-08-2016