M S PONNUSAMY Vs. K MARIMUTHU

JUDGEMENT

(1.) THE revision petitioner/appellant/petitioner/defendant has filed this civil revision petition as against the judgment and decree dated 24. 3. 2008 made in c. M. A. No. 51 of 2007 on the file of the Additional District and Sessions Court, dharapuram in confirming the fair and decretal order dated 22. 03. 2007 made in i. A. No. 631 of 2007 in O. S. No. 242 of 2000 on the file of the Sub Court, dharapuram.

(2.) THE first Appellate Court in its judgment in C. M. A. No. 51 of 2007 on 24. 3. 2008 has inter alia opined that '. . . . Admittedly, the suit was posted for trial in the list even on 21. 11. 2002. Plaintiff was examined in chief on that day and cross examination by petitioner/defendant was postponed at his request to 25. 11. 2002. But, on 25. 11. 2002 there was no representation for him and he also failed to appear. As a result an exparte decree was passed for the first time. The same was set aside subsequently on petition filed by the petitioner on costs. Then the suit was posted to trial in the list on 2. 3. 2005 and plaintiff was examined in chief on that day. The case was posted to 3. 3. 2005 for cross but again the petitioner/defendant failed to attend the court and there was no representation also for him. So, an exparte decree was passed on that day for a second time. Now, the petitioner has come forward with this petition for the third time to set aside the exparte decree etc. and that the revision petitioner has not stated material particulars such as name of his alleged relative, has expired etc. and that the petition is very vague without material particulars and neither sufficient nor acceptable reasons either pleaded or proved and the previous proceedings and previous conduct of the petitioner/defendant would clearly show that this petition is not at a bona fide and hence, he is not able to take a different view from what the trial Court has taken and there is no material irregularity in the order passed by the trial court and there is no need to interfere with the same in the appeal and resultantly, dismissed the appeal with costs. '

(3.) THE learned counsel for the revision petitioner/ appellant urges before this Court that both the Courts have not appreciated that the term 'was prevented by sufficient cause from appearing' must be liberally construed so as to give sufficient opportunities to the parties particularly when no negligence or inaction on the part of the defendant and that the Courts have wide discretion and no hard and fast guidelines can be prescribed and in a case where the defendant approaches the Court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided in the absence of any malafide and as a matter of fact, the revision petitioner has engaged a counsel and has been following the proceedings and the petitioner doe have reasons for his non appearance on 17. 02. 2006 for the reasons beyond his control and as such, he cannot be penalised for any previous negligence which has been over looked and earlier condoned and these aspects of the matter have not been looked into by the trial Court in a real perspective and this has resulted in an erroneous order being passed and the same needs to be corrected in the revision.