K NATESAN Vs. M A SRINIVASAN

JUDGEMENT

(1.) THIS revision has been directed against the order passed in I.A.No.39 of 2007 in O.S.No.813 of 2003 on the file of Additional District Judge (Fast Track Court-II) Chennai. The defendant in O.S.No.813 of 2003 had filed the said application in I.A.No.39 of 2007 under Order 9 Rule 13 CPC. As per the affidavit filed along with I.A.No.39 of 2007, O.S.No.813 of 2003 was posted for cross examination of plaintiff and since his counsel was engaged in the High Court in another civil revision petition, he could not be present before the Court on 4.9.2007 to cross examine the plaintiff and hence he was set exparte on 4.9.2007 and posted for orders on 10.9.2007 and thereafter on 14.9.2007 on which date the exparte decree has been passed against the defendant and to set aside the order of exparte passed against the defendant on 4.9.2007, he had filed I.A.No.39 of 2007.

(2.) ACCORDING to the revision petitioner/defendant, even though he was set exparte on 4.9.2007, the exparte decree was passed only on 14.9.2007 but to set aside the exparte decree dated 14.9.2007, he has filed the said application. The plaintiff has resisted the said application by filing his counter contending that not only on 4.9.2007, there was no representation for the defendant but also after setting him exparte, the matter was posted for orders on 10.9.2007 and thereafter on 14.9.2007, there was no representation for the defendant and there was no sufficient explanation for his absence on 14.9.2007 was given in the affidavit to set aside the exparte decree. After going through the affidavit to the application and counter filed by the plaintiff/respondent in I.A.No.39 of 2007, the learned Additional District Judge/Fast Track Court NO.II, Chennai, thought it fit to give an opportunity to the defendant to defend his case, had allowed the application on payment of cost of Rs.1,000/- to the plaintiff/respondent on or before 28.11.2007.

(3.) BUT a reading of the affidavit filed by the defendant in I.A.No.39 of 2007 will go to show that when the suit was posted on 4.9.2007 at 10.30 a.m for cross examination of the plaintiff, the junior counsel who was instructed to report to the Court about the non availability of the counsel for the defendant who was engaged in Civil revision petition pending before the High Court could not reach the trial Court to represent the Court in time on 4.9.2007 which resulted in an order of exparte against the defendant in the suit. So for the non appearance of the counsel for the defendant to represent the defendant on o4.9.2007, there is a reasoning given in the affidavit to the application in I.A.No.39 of 2007 as to the effect that since he was engaged in High Court for another Civil revision petition, he could not reach the Court wherein the trial in O.S.No.813 of 2003 was conducted at 10.30.a.m., on 4.9.2007 and by the time, the counsel could reach the said Court, the defendant was set exparte. This reasoning was accepted by the learned trial Judge but the learned trial Judge thought it fit to award a cost of Rs.1000/- for the non appearance of the learned counsel for the defendant on 4.9.2007 to cross examine the plaintiff.