KATHAVELU Vs. MURUGESAN

JUDGEMENT

(1.) THE petitioner is the plaintiff, aggrieved by the order setting aside the ex parte decree. THE petitioner filed O.S.No.2827 of 1982 for partition of half share in the suit property. THE respondent is the second defendant. THE first defendant, who is not a party to the civil revision petition, is the brother of the petitioner. Both the respondent and the other defendant were originally represented by the same counsel. But they filed separate written statements. THE case was taken up for trial and issues were framed. On 22.2.1990, the evidence of P.W.1 was recorded. THE matter was posted on 27.2.1990, on which date the Advocate for the respondent herein reported instructions". THE respondent was set ex parte and preliminary decree was passed on 7.3.1990. THE respondent filed I. A. No. 707 of 1994 for setting aside the ex parte decree. According to him, on 27.2.1990 he was not present in Court and the Advocate had reported 'no instructions' , but he could not appear in Court because of acute dysentery for which he took native treatment and he was prevented by 'sufficient cause". Since he has substantial defence in the suit, it was necessary to set aside the ex parte decree. THE District Munsif, Tiruchy dismissed the interlocutory application on the ground that sufficient cause had not been made out. Aggrieved thereby the respondent filed C.M.A.No.27 of 1996. THE learned Subordinate Judge allowed the appeal. Against that, the present civil revision petition has been filed.

(2.) MR. Rajendran, learned counsel for the petitioner submitted that the conduct of the respondent was not at all bona fide. The suit was decreed on merits and therefore, an application under Order 9, Rule 13, CPC is not maintainable. He relied on the decision reported in K.R. Chinnathambi Gounder v. Bhanumathy, 1998 (2) LW 271 in which this Court dismissed the application under Order 9, Rule 13, CPC, because there was no bona fide on the part of the petitioner and his only intention was to drag on the matter.

(3.) THE explanation was, for not being present in Court on 27.2.1990. But ex parte decree was passed on 7.3.1990. No explanation is given as to why the respondent was not present on 7.3.1990. THE documents produced in the paper-book as well as the certified copy of the evidence of P.W.1 are useful to trace the chronological sequence of events. On 22.2.1990, examination of P.W.1 in chief was over; cross-examination only by the first defendant; no cross-examination by the respondent; P.W.1 evidence closed; On 27.2.1990 respondent was unwell allegedly because of acute dysentery. On 7.3.1990, preliminary decree was passed on merits. On 8.3.1990, the respondent applied for order copy under copy application No.3476. Though the respondent may have been unwell on 27.2.1990, he knew the case was adjourned to 7.3.1990 and there is no explanation for his absence on that date. It is evident that he was aware of the ex parte decree that was passed on 7.3.1990, since he has applied for the copy of the judgment and decree on 8.3.1990. Apparently, thereafter stamps were called for on 5.4.1990. Again the respondent appears to have fallen ill and forgetting the matter, the copy application was struck off. THErefore, he filed an application to restore the copy application No.3476 that was struck off. This is I.A.No.386 of 1992. This was filed two years after the ex parte decree. THE order passed in this interlocutory application has been annexed in the typed set of papers. THE learned Judge finds that though the copy application was struck off on 5.4.1990 the affidavit in I.A.No.386 of 1992 was filed only on 9.1.1991, nine months after 5.4.1990. THE District Munsif, Trichy did not accept the case" of the petitioner, which is, 'subsequently owing to my totally forgetting the matter the printing charges not deposited... it remain unnoticed till date."