S SUNDARAM PILLAI Vs. S KANNAN

JUDGEMENT

(1.) BY consent of both the counsel, the civil revision petition itself is taken up for final disposal. The respondents herein filed the suit O.S.No.899 of 1985 on the file of the District Munsif Court, Salem for specific performance of the suit agreement. The said suit was decreed ex parte on 19.7.90. On 27.7.90 the petitioners filed I.A.No.1065 of 1990 for setting aside the ex parte decree stating that the advocate did not inform the hearing date and hence they could not attend the court on that date. The said application was opposed by the respondents by just denying the averments made in the affidavit and further contended that O.9, Rule 13 has no application, since the suit has been decreed on merits.

(2.) THE trial court by its order dated 6.3.92 dismissed the said application, without considering the reason given by the petitioners for their absence on the hearing date. THE petitioners herein filed an appeal in C.M.A.No.9 of 1992 on the file of Principal Subordinate Judge, Salem. THE Principal Subordinate Judge, Salem dismissed the appeal, against which the present revision has been filed.

(3.) ON the contrary, the counsel for the respondents contended that both the courts have found that the order passed is only under O.17, Rule 3, C.P.C. and as such it is open to the petitioners to file an appeal instead of agitating the matter further. When the first petitioner has admitted in her evidence that she was present in the court when P.W. 1 was examined and she does not know the reason for non-cross examination by her advocate, the order has to be construed as one passed under O.17, Rule 3, C.P.C. Since there is contradiction in the averment made in the affidavit and in the deposition, the evidence of the petitioner has to be totally rejected.