SUBRAMANIAN Vs. KUPPUSAMY

JUDGEMENT

(1.) DISGRUNTLED with the judgment passed by the lower appellate Court, namely, Subordinate Judge, Panruti, in C.M.A.No.9 of 2003, confirming the order passed by the trial Court in dismissing the application to set aside the ex parte decree, the petitioner has filed this Civil Revision Petition.

(2.) ORIGINALLY, the respondent filed a suit for partition and separate possession. Since the petitioner remained absent, the trial Court passed the ex parte decree on 03.12.1996. Firstly, I.A.No.269 of 1997 was filed by the petitioner to set aside the ex parte decree dated 03.12.1996 and the same was allowed by consent on 06.04.1999 and the case was adjourned to 13.04.1999 for cross-examination of P.W.1, which was not done by the petitioner till 14.06.1999, resulting in passing of the exparte decree for the second time on 14.06.1999. Thereafter, the second application in I.A.No.822 of 1999 was filed to set aside the said ex parte decree dated 14.06.1999 and that too was allowed on consent on 12.06.2000. Even thereafter, P.W.1 was not cross-examined by the petitioner/defendant. Therefore, for the third time, the ex parte decree was passed on 05.09.2000. Thereafter, the third application in I.A.No.846 of 2000 was filed to set aside the ex parte decree dated 05.09.2000 and the said application was also allowed on condition to deposit a sum of Rs.2,000/- by an order dated 11.06.2001. On the deposit of Rs.2,000/-, the ex parte decree was set aside and the matter was listed on 03.09.2001, pursuant to which the respondent/plaintiff was examined afresh and the petitioner took adjournments for cross-examination till 27.09.2001 and thereafter failed to cross examine the respondent by not attending the Court. Therefore, the ex parte decree was passed on the same day. The impugned application was filed for the fourth time to set aside the said ex parte decree dated 27.09.2001 only to drag on the proceedings with a view to delay the partition of the suit properties.

(3.) PER contra, learned counsel for the respondents would submit that sufficient cause was not shown by the petitioner for his repeated absence for four times on the dates of passing the ex parte decree and taking into account the continuous default of the petitioner and in the absence of any proof to show the illness, the Courts below had rightly non-suited the petitioner. To substantiate his case, the learned counsel would cite the decision in Kathavelu v. Murugesan, (2001 (2) M.L.J.802), in which it has been held thus:"12. In the decision relied on by the respondent in Smt. Benibai v. Smt. Champabai, (A.I.R.1996 M.P.243), the Madhya Pradesh High Court held that though an application under O.9, Rule 13 C.P.C. cannot be allowed on humanitarian grounds, the Court should not close their eyes to the realities of the case. The reality in this case is a sharp litigant who thinks he can play ducks and drakes with the Court. So he shall have his comeuppance. The decision reported in K.R. Chinnathambi Gounder v. Bhanumathy, (1998) 2 L.W.271), is applicable to this case."Even assuming that on the date of the ex parte order, he was not able to be present before the Court due to illness, there is no reason as to why he did not pursue the matter for about five years. The act of the petitioner in filing the application belatedly would show that he is only interested in dragging on the proceedings, which should not be allowed by the Court.".