M.Parvathi v. O.Pitchai
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 07.03.2018 CORAM :
THE HONOURABLE MRS.JUSTICE J.NISHA BANU C.R.P.(NPD)(MD)No.453 of 2018 and C.M.P(MD) No.2006 of 2018 M.Parvathi : Petitioner/Petitioner/Defendant Vs.
O.Pitchai : Respondent/Respondent/Plaintiff Prayer: Civil Revision Petition is filed under section 115 of the Code of Civil Procedure, against the fair and decreetal order, dated 20.03.2017 passed in I.A.No.1106 of 2016 in O.S.No.128 of 2014 on the file of the Sub Court, Theni and to allow the same. For Petitioner : Mr.M.A.M.Raja For Respondent : Mr.P.R.Prithiviraj
O R D E R
This civil revision is filed against the order dated 20.03.2017 passed in I.A.No.1106 of 2016 in O.S.No.128 of 2014 on the file of the Sub Court, Theni, dismissing the application to condone the delay of 748 days in filing the petition to set aside the ex-parte decree, dated 14.10.2014 passed in O.S.No.128 of 2014.
2. The Respondent /plaintiff has filed a suit in O.S.No.128 of 2014 for recovery of money based on the promissory note. The Petitioner is the defendant in the suit.
3.The learned counsel appearing for the petitioner has contended that the suit was posted on 14.10.2014 for filing written statement. The petitioner's counsel has not informed about the suit to the petitioner and also due to her ignorance, the petitioner is not aware of the proceedings. Therefore, the petitioner was not able to appear before the trial court and not filed her written statement and hence, the suit was decreed ex-parte. When the petitioner came to know about the ex-parte decree, there was a delay of 748 days in filing a petition to set aside the ex-parte decree. As the delay caused is neither wilful nor wanton, the petitioner has submitted the petition to condone the delay, which was dismissed by the learned Trial Judge on 20.03.2017, against which the present Civil Revision Petition is filed.
4. Per contra, the learned counsel appearing for the respondent has contended that the petitioner had filed this revision with an intention to drag on the proceedings and she knows about the ex-parte decree passed against her well in advance. He would further submit that after the exparte decree, the respondent filed an execution proceedings in E.P.No.70 of 2015, which was adjourned for filing counter by the petitioner.
5. Heard the learned Counsel for the petitioner and the learned Counsel for the respondent and perused the materials available on record.
6. The learned counsel for the petitioner would contend that the earlier counsel did not inform her about the exparte order. He would further contend that the petitioner has engaged three advocates and the petitioner does not know about the ex-parte order and the petitioner is also working as a Scavenger.
7. It is seen from the records that the suit is filed for recovery of money and the suit was decreed ex-parte on 14.10.2014. On perusal of records, it is seen that the notice was served and the case was posted for filing written statement, but the petitioner has not filed written statement and hence, exparte decree was passed.
8. The main grievance of the petitioner is that there are arguable points available to contest the suit and hence, the exparte decree passed against her has to be set aside.
8. The learned Counsel appearing for the respondent though initially opposed for condoning the delay, would submit that the revision may be allowed on condition to deposit the amount involved.
9. Keeping in view of the above facts and also considering the fact that the petitioner is working as a Scavenger, this Court is of the view that an opportunity shall be given to her to contest the suit on merits. As the delay was huge, i.e., 748 days in filing the application to set aside the ex-part decree, this Court feels ends of justice would be met if this revision is ordered on terms.
10. In the result, this revision is allowed and the order dated 20.03.2017, passed in I.A.No.1106 of 2016 in O.S.No.128 of 2014 on the file of the learned Subordinate Judge, Theni, is set aside. The I.A.No. 1106 of 2016 in O.S.No.128 of 2014 is allowed on condition that the petitioner shall deposit a sum of Rs.1,50,000/- [Rupees One Lakh Fifty Thousand only] to the credit of O.S.No.128 of 2014, on or before 23.03.2018. Till then, there shall be an order of interim stay in respect of all further proceedings in E.P.No.70 of 2015. If the amount is not deposited within the said period, the interim order granted stand
automatically vacated and the civil revision petition will stand dismissed without further reference to this Court. No costs. Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar(C.O) /True Copy/ Sub-Assistant Registrar To The Subordinate Judge, Theni, +One cc to M/s.M.A.M.Raja, Advocate, SR.No.53863 +One cc to M/s.P.R.Prithivi Raj, Advocate, SR.No.53556 rm RL/4C/3P/SKN/RSK/SAR4/9/3/2018 C.R.P.(NPD)(MD)No.453 of 2018 07.03.2018