K JANARTHAN Vs. R THILAK KUMAR

JUDGEMENT

(1.) THIS revision petition is directed against an order setting aside the exparte decree passed in O.S. No. 2353 of 1991 on the file of the Seventh Assistant Judge, City Civil Court, Madras. The undisputed facts are as follows: The petitioners herein filed an original petition for leave to file a suit as indigent persons in this Court on the original side on 10-10-1975. In the original petition, notice was ordered to the respondents therein, the 8th respondent therein being the respondent herein. He entered appearance through counsel on 29-6-1976. After the petition was ordered, the suit was registered as C.S. No. 389 of 1977. Once again, the respondent engaged counsel and T. Raghavan. T. Scshadri and Mailsami filed vakalat for him on 11-4-1978. On the passing of the Tamil Nadu Civil Courts Act 34 of 1980 enhancing the pecuniary jurisdiction of the City Civil Court and providing that the suits pending in this court of the value below the pecuniary limits mentioned therein, shall stand transferred to the City Civil Court, the proceedings in the suit were forwarded to the City Civil Court. The papers were received in the City Civil Court on 2-7-1981 and the suit was numbered there as O.S. No. 2353 of 1981. It was called in the Second Additional Court. A copy of the plaint was filed with suitable amendments in view of the change of forum on 11-8-1981. The Court directed fresh summons to the 2nd defendant and notice to counsel for other defendants returnable on 11-9-1981. The matter was being adjourned for the same purpose till 19-9-1981 on which date the matter was posted to 30-9-1981. On 30-9-1981, the 7th defendant's counsel filed vakalat. The Court recorded that fresh summons had been issued to the second defendant and return thereof was to be awaited. With regard to defendants 3, 4, 10, 12, 14 and 15, the Court adjourned the matter to 22-10-1981 for filing vakalat and written statement. On 22-10-1981 the Court recorded that summons issued to the 2nd defendant was returned unserved for want of residence and fresh summons was directed to the correct address. It was also recorded that vakalat and written statements were filed for defendants 3, 4, 5, 10, 11, 12, 15 and 16. The further entry contained a direction to issue fresh summons to defendants 2, 6, 10 and 13. As regards others, including the respondent herein it was adjourned to 18-11-1981 for written statement On 18-11-1981 the matter was adjourned to 15-12-1981 with a similar entry. On 15-12-1981 it was recorded that the 9th defendant's counsel had filed vakalat and the 6th defendant was set ex parte as he was absent in spite of service and fresh summons was directed to defendants 2, 10 and 13. Time for filing written statement was granted to others. The names of counsel for defendants 3, 10, 15 and 17 were noted. The matter was adjourned to 19-1-1982. From 19-1-1982 it was adjourned to 5-2-1983 with similar entries. On 24-2-1983 the suit was transferred to the 7th Assistant Judge to be called along with O.S. No. 1018 of 1979 on 25-2-1983. On the later date the matter was adjourned for written statement of defendants to 11-4-1983. It was further adjourned to 15-6-1983, 30-6-1983 and various other dates upto 18-10-1983. On 18-10-1983, the following entry is found:

(2.) THE respondent herein filed I.A. 13967 of 1988 on 1-8-1988 under O. 9, R. 13, C.P.C. for setting aside the decree passed on 13-5-1986. In the affidavit filed in support of the application he claimed that he had no knowledge of the transfer of the suit to the City Civil Court and the subsequent proceedings there-in. According to him, he came to know of the matter only on 28-7-1988, pursuant to certain notices issued by the petitioners in other proceedings claiming to be Receivers. THE application was opposed by the petitioners therein THE trial Court has accepted the application and passed an order setting aside the exparte decree. THE order was passed on 7-2-1991. It is the said order that is challenged in this revision petition.

(3.) IT has also been pointed out by this Court in Arukkani Ammal v. Gurusamy (1987) I M.L.J. 32 = 100 L.W. 707. ?The power of the Court to set aside an exparte decree should be exercised judicially, and unless sufficient cause is shown for non-appearance on the day on which the suit is fixed for hearing, there will be no jurisdiction or justification for the trial Court to set aside the ex parte decree?. The tendency on the part of litigants to take exparte decrees casually and make applications at leisure to set them aside should be curbed and the court should scrutinise the same with proper care having regard to the stringent provisions of S. 5 of the Limitation Act.