VAIJAYANTHIMALA Vs. A RAMASAMY

JUDGEMENT

(1.) THE defendants in O.S.No.207 of 1994 on the file of Sub Court, Periyakulam are the petitioners in this civil revision petition. THE petitioners have challenged in this civil revision petition the fair and decretal order passed by the learned Principal D1strict Judge, Madurai in C.M.A.No.20 of 1999 dated 21.9.2000 confirming the order of the learned Sub Judge, Periyakulam made in I.A.No.385 of 1996 in O.S.No.207 of 1994 dated 21.12.98. THE respondent filed a suit in Sub Court, Periyakulam against the petitioners herein for a judgment and decree for specific performance and in the alternative to bring the schedule mentioned property for sale. In the said suit, the petitioners were set ex parte on 5.7.1996 and an ex parte decree was passed on 11.7.1996. THE petitioners filed I.A.No.385 of 1996 to set aside the judgment and decree passed on 11.7.1996. THE 1st petitioner filed an affidavit in support of the said petition stating that when the suit was posted on 11.7.1996 for filing written statement, she could not attend the hearing due to jaundice as she was bedridden from 8.7.1996. Due to her illness the 1st petitioner was unable to instruct her counsel to file the written statement. THErefore, the written statement could not be filed on 11.7.1996. THErefore, she had prayed for dismissal of the ex parte decree. THE respondent filed a counter affidavit stating that the suit was originally posted for filing of written statement on 15.12.1995. Since the defendants/ petitioners did not file the written statement for nearly one year, the suit was finally posted on 12.4.1996 for filing written statement. On the said date, the defendants did not file the written statement. THErefore, they were set ex parte on the next adjourned date namely, 5.7.1996 and the case was posted on 11.7.1996 for ex parte evidence of the plaintiff. Even on the said date, there was no representation on behalf of the defendants/ petitioners. THErefore, the suit was decreed ex parte on 11.7.1996. THEreafter only an application was filed on 8.8.1996 to set aside the ex parte decree dated 11.7.1996. Even in the said application they have not given any reason for the delay in not filing the application to set aside the ex parte decree from 5.7.1996 as perO.9, Rule 13 of C.P.C. In the absence of the same, the plaintiff prayed for dismissal of the application. Further, the plaintiff stated that even though there are 4 defendants, only the 1st defendant/1st petitioner filed an affidavit and she has not filed any document in support of her claim that she was affected with jaundice. Further, there was no explanation as to why the case was not prosecuted by the other defendants. THErefore, the plaintiff prayed for dismissal of the said application. THE said application came to be dismissed by the learned Sub Judge, Periyakulam on the ground that there was not sufficient explanation from the defendants as to why they could not appear on 5.7.1996 when they were set ex parte on 11.7.1996 when an ex parte decree was passed. THE learned Judge absolutely found that there was no explanation from 5.7.1996 till 8.7.1996, when the 1st petitioner claims to have affected by jaundice. THErefore, the learned Sub Judge dismissed the application. THE appeal preferred by the petitioners in C.M.A.No.20 of 1999 was also dismissed by the learned Principal District Judge, Madurai.

(2.) THE learned counsel for the petitioners would contend that even though the 1st petitioner alone has filed an affidavit to set aside the ex parte decree, she has stated that from 8.7.1996 onwards she was bed ridden due to jaundice and therefore she could not appear before the Court on 11.7.1996. On coming to know of the ex parte decree, the petition to set aside the ex parte decree was filed on 8.8.1996. In fact, the 1st petitioner examined herself as one of the witnesses and she has explained the delay. THE learned counsel would rely upon a judgment reported in C.P.Srivatsava v. Shri R.K.Raizada and others C.P.Srivatsava v. Shri R.K.Raizada and others C.P.Srivatsava v. Shri R.K.Raizada and others (2000 2 C.T.C. 27 to contend that the discretion of the Court to consider an application underO.9, Rule 13 of C.P.C. should be normally exercised in favour of party approaching the Court within limitation. THErefore, the learned counsel submitted that both the orders of the Courts below are liable to be set aside and the petitioners should be given an opportunity to defend their case on merits.