RASATHIAMMAL Vs. N. MURUGASAMY

JUDGEMENT

(1.) The civil revision petitions are directed against the fair and decreetal orders, dtd. 20/1/2010, passed in I.A. Nos. 490 and 491 of 2009 in O.S. No. 22 of 2007, on the file of the Subordinate Court, Palani.

(2.) The suit has been laid by the respondent / plaintiff for specific performance against the revision petitioner and others. The revision petitioner is the first defendant in the suit. From the materials placed on record, it is found that the respondent / plaintiff has been examined as P.W.1 in chief on 25/9/2008 and thereafter, his cross-examination had ended on 6/4/2009 and he had further examined P.W.2 and his evidence had been closed on 22/7/2009. Thereafter, it is noted that the revision petitioner / first defendant has filed the proof affidavit on 8/9/2009 and the matter had been adjourned for cross-examination from 1/10/2009 to 2/11/2009 and inasmuch as the revision petitioner did not appear and finally, on 2/11/2009, as the revision petitioner's counsel reported no instruction and the revision petitioner, being called and remained absent, it is found that she had been set ex parte and the matter proceeded further and the suit had been adjourned for pronouncing Judgment on 17/11/2009. Meanwhile, it is found that the revision petitioner / first defendant, who had been set ex parte, as abovenoted, has moved the applications before the Court below, one application in I.A. No. 490 of 2009 to set aside the ex parte order passed against her, under Order IX Rule 7 and Sec. 151 of the Code of Civil Procedure and the another application in I.A. No. 491 of 2009 to reopen her evidence, which had been closed on 2/11/2009, under Sec. 151 of the Code of Civil Procedure. For sustaining the abovesaid applications, according to the revision petitioner, as she was suffering from knee pain severely and taking treatment outside and thereby, unable to attend the Court, she was prevented from appearing in the Court on 2/11/2009, on which date, the matter had been adjourned for her cross-examination and consequently, she had been set ex parte and only subsequent thereto, she had come to know about the ex parte order passed against her on contacting her Advocate and as she has a good case to defend the respondent's suit, accordingly, had come forward with the abovesaid applications to set aside the ex parte order and to reopen her evidence further.

(3.) The abovesaid applications preferred by the revision petitioner had been stoutly resisted by the respondent contending that the revision petitioner had filed the proof affidavit on 8/9/2009 and thereafter, from 1/10/2009 to 2/11/2009, the matter had been adjourned on several occasions for her cross-examination and despite the same, she has not evinced interest to appear and subject herself for cross-examination and on 2/11/2009, her counsel also having reported no instruction and resultantly, she having been called and remained absent and thereby, set ex parte and the matter proceeded further and after hearing both sides, the Court had reserved the Judgment and posted the matter on 17/11/2009 for pronouncing Judgment, accordingly, it is contended that inasmuch as the revision petitioner has no defence to resist the respondent / plaintiff's suit, only with a view to cause him undue hardship and inconvenience and to delay the proceedings endlessly, has come forward with the false case and contended that the plea of severe knee pain and the treatment taken thereof are all false and projected only for the purpose of the case and accordingly, prayed for the dismissal of the applications.