KUPPAIYEE AMMAL Vs. SOLAMMAL

JUDGEMENT

(1.) THIS is a defendant's revision petition directed against an order rejecting an application for condonation of delay in filing a petition under Order 9, Rule 13, Civil Procedure Code.

(2.) THE plaintiff has filed the suit on the basis of a promissory note against the defendant. THE suit was posted for trial finally on 30. 8. 1979. THE defendant did not appear on that date and consequently the suit was decreed ex parte on the same date.

(3.) NORMALLY in the case of a party being absent on the date of hearing, it is expected that the counsel of the party appears before the court and if the party is not present, the counsel would normally ask for an adjournment. It is also the duty of the counsel in case the party is not present to intimate to the party that an ex parte decree has been passed. It is noticed that some times in the case of litigants who come from villages, though they are represented by counsel, no attempt is made by the counsel to be present in court, if the party is not present. A party, who has appointed a counsel would be fully justified in proceed ing on the assumption that his or her interests are safe in the hands of the counsel and that in case an adverse order is passed, the counsel would communicate the order to the party. There is nothing in the evidence to indicate that the fact of the ex parte decree having been passed was intimated by the counsel. It may not be possible also to reject out of hand the claim of the defendant that she was ill. The defendant is an old lady in the village aged about 60 years. NORMALLY, the defendant would not remain absent when she knows that her absence is likely to result in a decree against her. Deliberate absence is not a normal event and in the case of a villager like the present defendent, it would be too much to hold that she was deliberately absent on the date of the hearing. The learned District Munsif had merely rejected the explanation with the observation that it was not satisfactory. In such circumstances, when the fact of the ex parte decree is not intimated it may not be possible to blame a party for the delay in making the application and it would be permissible to take liberal view in a case like the present one, the learned District Munsif should have really entertained the application because there are no grounds to disbelieve that the defendant was moving in the village or was really not ill. Undoubtedly, production of a certificate by a doctor would have assisted the court. But it is not that all villagers normally obtain certificates from doctors unless so required or advised by the counsel. In the circumstances, therefore, I set aside the order of the learned District Munsif declining to condone the delay.