S MANGAIYARKARASI Vs. M NARAYANAN

JUDGEMENT

(1.) This Civil Revision Petition has been filed against the order passed by the lower Court in I.A.No. 70 of 2006 in O.S.No.81 of 2001 dated 10.08.2006, on the file of Additional District Court / Fast Track Court No.I, Erode.

(2.) Heard Mr.N.Manoharan, the learned counsel for the revision petitioner and Mr.V.Lakshminarayanan, the learned counsel for the respondent.

(3.) The learned counsel for the petitioner would submit in his argument that the order passed by the Court below has directed to deposit 50% of the decree amount even at the stage of condonation of delay in filing an application under order 9 Rule 13 of CPC which is not justifiable, but is prejudicial to the petitioner. He would further submit in his argument that the condition imposed by the lower Court below is un-reasonable. He would submit in his argument that the direction to deposit of 50 % of the suit claim is an onerous condition and it would be amounting to pre-determination of the case. He would further submit in his argument that the lower Court ought to have accepted the circumstances that would prevent the petitioner from non-appearing before the Court on 08.02.2002, which was due to his ill health and it would be sufficient to condone the delay or to set aside the ex parte decree. He would further submit that the petitioner should have been allowed to contest the case on merits. He would also draw that attention of the Court to the provisions of Order 9 Rule 13 of CPC that he has to show to the Court either he was not duly served with summons or was he prevented by sufficient cause from appearing before the Court on the particular hearing date. He would also submit that the sufficient cause was explained by him by saying that the petitioner was affected by diabetic and high blood pressure and was bed ridden and hence, he could not attend the Court on 08.02.2002 and therefore, the lower Court should have allowed the application with justifiable costs. He would draw the attention of the Court to a judgment of this Court made and reported in (2007) 5 CTC 198 in between D.K.Bhaskaran and another v. Barton Trust and another. He would also submit in his argument that he is ready to deposit the entire suit claim and an opportunity may be given to the petitioner to have a contest in the decree. He would therefore, request the Court to interfere and set aside the onerous condition imposed by the Court below for condoning the delay in filing the application to set aside the exparte decree and thus, the revision may be allowed.