N JANAKIRAMAN Vs. DIRECTOR OF TAMIL NADU RAFFLES

JUDGEMENT

(1.) 1.It is seen from paragraph 4 of the counter filed by the petitioner before the court below that the plaint presented by the petitioner as an indigent person was ordered to be registered as a suit on 4.4.82 and the suit was thereafter posted to 21.11.83 for the first time for filing of written statement by the respondent. It is also further seen that from 21.11.83, time for filing written statement was extended till 7.12.83, 4.1.84, 21.1.84, 27.1.84,16.2.84, 27.2.84,15.3.84 and finally upto 28.3.84. On 28.3.84 as the written statement was not filed despite more than sufficient time having been given, the respondent was set ex parte. The court below in paragraph 6 of its order has stated that the deponent to the affidavit filed by the respondent was not authorised to file an affidavit on behalf of the first defendant in the suit and that it is also not clear in what capacity he purports to file such an affidavit. The court below has also further stated that such an affidavit does not deserve to be accepted. Thus it is seen that there is absolutely no explanation whatever for the omission on the part of the respondent to file a written statement before 28.3.84 and as to how the deponent to the affidavit was a person authorised, competent to file an affidavit on behalf of the respondents. Though the court below was aware of this it proceeded to hold that the absence of an explanation would be relevant only when an ex parte decree is set aside and not with reference to an order setting the defendant ex parte. This distinction in my view does not appear to be correct, for it is seen in this case that the respondent had been granted every indulgence to file the written statement, but had not done so. In these circumstances particluarly in view of the absence of any explanation by the respondent, the respondent was rightly set exparte. It is not as if the availability of sufficient cause would be relevant only when an exparte decree is set aside and not when an exparte order is likewise sought to be got rid of. Under these circumstances, the C.R.P. is allowed and the order of the court below in I. A.No. 1040 of 1885 is set aside and that application will stand dismissed.There will be no order as to costs.