LA VALLIAPPAN Vs. P SUBRAMANNIAN

JUDGEMENT

(1.) The petitioner/respondent/plaintiff has preferred this civil revision petition as against the order dated 2.7.2009 in I.A. No. 454 of 2008 in O.S. No. 184 of 2005 passed by the learned II Additional Subordinate Judge, Coimbatore in passing an order on condition that the application I.A. No. 454 of 2008 filed by the respondents/ petitioners/defendants will be allowed on payment of cost of Rs.2,000/- to be paid on or before 28.7.2009 and the matter has been directed to be called on 29.7.2009.

(2.) The learned counsel forthe revision petitioner/ plaintiff contends that the trial Court has not assigned valid reasons for setting aside the ex parte decree application and the award of costs as penalty will not cure the defect in allowing the application and further the trial Court should have seen that the present application I.A. No. 454 of 2008 has been filed after a lapse of 3 years from the date of passing of the ex parte decree and in fact, the respondents/petitioners/defendants in I.A. No. 454 of 2008 have not assigned sufficient cause for getting the ex parte decree set aside and added further, the objections of the revision petitioner/plaintiff has not been adverted to by the trial Court and in short, the order of the trial Court is clearly an abuse of process of law and the same is unsustainable and therefore, prays for allowing the civil revision petition in the interest of justice.

(3.) It is to be noted that the respondents/petitioners/ defendants have filed I.A. No. 454 of 2008 before the trial Court praying to condone the delay of 831 days in filing an application to set aside the ex parte preliminary decree dated 14.10.2005. In the said affidavit, the first respondent/first defendant has averred among other things that due to his ill health and old age, he has been suffering from jaundice and taking a treatment at Kerala and also taking Nattu vaithiam and since he has not been attending his Advocate's office and he has not followed the suit and therefore, his non-filing of written statement has been due to his ill health and not due to his carelessness, negligence and therefore, has prayed for allowing the application.