N.Kulanthaisamy v. R.Boopathy

ORDER The present Civil Revision Petition has been filed against the fair and decreetal order in I.A.No.1 of 2021 in O.S.No.211 of 2017, dated

22.02.2022 on the file of the Principal Sub Court, Karur.

¶2By the impugned order, dated 22.02.2022, the Principal Sub Court, Karur has dismissed I.A.No.1 of 2021 in O.S.No.211 of 2017 filed by the petitioner. I.A.No.1 of 2021 in O.S.No.211 of 2017 was filed to condone a delay of 309 days in filing application to set aside the order, dated 04.03.2019.

¶3The relevant portion of the impugned order reads as under:

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¶7NkYk;> kDjhuh; jug;gpy; thjpl;l fw;wwpe;j tof;fwpQh; jdJ thjj;jpy; mry; tof;fpy; jFjpapd; mbg;gilapy; kDjhuUf;F tha;g;gspg;gjw;fhf kDit mDkjpf;f Ntz;Lk; vd;W thjpl;lhh;. Mdhy; fhytiuaiwr;rl;lj;jpd;

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vjph;thjj;ij epuhfhpf;f ,ayhJ. ,J Fwpj;J 1193 (2) Civil LJ 321 Fotolite Colour Labs Vs M/s.Aver Foto Print System vd;w jPh;Kbtpy; fPo;fz;lthW Rl;bf;fhl;lg;gl;Ls;sJ. 'Thus, it is evident from the above decision that if the court is not satisfied with the reasons stated, it should reject the application. Undoubtedly, in case on hand, there is a categorical finding by the Court below that the respondents-defendants received notices and they have not explained sufficient reasons which prevented them from making their appearance and contesting the matter. This being the finding, the order of the Court below, allowing the application under Section 5 of the Limitation Act, would be amounting to material irregularity committed within the meaning of Clause (c) of Section 115 C.P.C.' NkYk;> tof;fpw;fhd fhytiuaiw eph;zak; nra;tJ nghJ ed;ikf;fhf nghJ nfhs;ifapd; mbg;gilapy; nra;ag;gl;Ls;sJ. vdNt tof;fpd; jug;gpdh;fs;

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Pundlik Jalam Patil (D) by Lrs Vs Exe.Jalgaon Medium Project and another "Statutes of limitation are sometimes described as `statutes of peace'. An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. This court in Rajender Singh and others vs. Santa Singh and others [(1973) 2 SCC 705] has observed : "the object of law of Limitation is to prevent disturbance and deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence or laches". In Motichand vs. Munshi [(1969) 2 SCR 824], this court observed that this principle is based on the maxim "interest republicae ut sit finis litum, that is, the interest of the State requires that there should be end to litigation but at the same time law of Limitation are a means to ensuring private justice suppressing fraud and perjury, quickening diligence and preventing oppression." "It needs no restatement at our hands that the object for fixing time limit for litigation is based on public policy fixing a life span for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy."

¶9NkYk;> ekJ khz;GkpF nrd;id cah;ePjkd;wj;jhy; toq;fg;gl;l 2009 (3) MLJ 782 vd;w jPh;Kbtpy; fPo;fzlthW Rl;bf;fhl;lg;gl;Ls;sJ. 'C.Raghupathy Vs C.Govindan and others It is also well settled that the question of limitation is not merely a technical consideration but based on principles of sound public policy as well as equity and that a victorious litigant cannot be expected to remain disgruntled indefinitely for a period to be determined at the whims and fancies of the opponent.'

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¶4The petitioner is the sole defendant before the trial Court in O.S.No.211 of 2017. The suit was filed by the respondent/palintiff to recover a sum of Rs.5,00,000/- based on the promissory note, which is said to have been executed by the petitioner.

¶5It appears that the petitioner entered appearance before the Trial Court but failed to file a written statement. Therefore, the petitioner was set ex parte on 23.06.2017. According to the learned counsel for the respondent/plaintiff, order dated 23.06.2017 was set aside on terms and a fresh opportunity is given to the petitioner to file a written statement. However, the petitioner failed to avail the opportunity and was negligent and thus, the petitioner was set ex parte once again on 20.11.2018.

¶6Thereafter, the Trial Court has proceeded to pass an ex parte decree on 04.03.2019. The ex parte judgment and decree appears to be a reasoned judgment on merits and decree and was based on the available records that were filed by the respondent/plaintiff before the trial Court. The respondent/plaintiff had also examined witness on behalf of the respondent/plaintiff.

¶7The petitioner has thereafter filed I.A.No.1 of 2021 at the stage when execution of decree for attaching the property of the petitioner/defendant to recover the decreed amount. The Trial Court by the impugned fair and decreetal order, dated 22.02.2022 in I.A.No.1 of 2021 in the above suit in O.S.No.211 of 2017 has dismissed the application filed by the petitioner to set aside the ex parte decree. The Court has come to a conclusion that the petitioner has not explained the delay of 309 days to file an application for setting aside the ex parte decree, dated 04.03.2019 properly and therefore, the application filed for condoning the delay was liable to be dismissed.

¶8Today, when the case was taken up for hearing, the learned counsel for the petitioner submits that the petitioner is willing to deposit the entire amount of Rs.5,00,000/- as was decreed before the trial Court. Therefore, he prays that the impugned order be set aside and a fresh opportunity be given to the petitioner to workout the remedy as the suit was filed without any documents and that the respondent/plaintiff has actually failed to prove that the amount was due for the petitioner/defendant.

¶9On the other hand, the learned counsel for the respondent submit that the impugned order passed by the Principal Sub Court, Karur on 22.02.2022 in I.A.No.1 of 2022 in O.S.No.211 of 2017 was well reasoned and requires no interference.

¶10I have considered the arguments advanced by the learned counsel for the petitioner and the learned counsel for the respondent.

¶11No doubt, the petitioner was negligent in not filing written statement in time thereby allowed the suit to be decreed ex parte on

04.03.2019. The petitioner had also not taken any steps to set aside the ex parte decree in time. Instead, waited for the respondent/plaintiff to initiate execution proceedings to recover the decreed amount. It is only thereafter I.A.No.1 of 2021 was filed by the petitioner. While the petitioner has not given sufficient grounds for condoning the delay, the Court is however inclined to allow this Civil Revision Petition subject to terms: The petitioner shall deposit the entire decree amount before the Principal Sub Court, Karur within a period of 8 weeks from the date of receipt of copy of this order. The petitioner shall also pay a cost of Rs.25,000/- to the respondent/plaintiff. On such compliance, the Principal Sub Court, Karur shall accept written statment and thereafter, proceed to frame issues and proceed with trial. Subject to such compliance, the attachment order shall stand vacated. The Principal Sub Court, Karur thereafter complete the trial and dispose of the suit as expeditiously as possible preferably within a period of 9 months from the date of receipt of copy of this order.

¶12The present Civil Revision Petition stands allowed with the abvoe observations. No costs.

31.03.2023 NCC : Yes / No Index : Yes / No Internet : Yes / No sn To

1.The Principal Sub Court, Karur.

2.The Section Officer Vernacular Section, Madurai Bench of Madras High Court, Madurai. C.SARAVANAN

,J.

SN

31.03.2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 31.03.2023 CORAM THE HON'BLE MR.JUSTICE C.SARAVANAN N.Kulanthaisamy ... Petitioner/ Petitioner/ Defendant Vs. R.Boopathy ... Respondent/ Respondent/ Plaintiff PRAYER: Civil Revision Petition is filed under Section 115 of C.P.C, to set aside the Fair and Decreetal order passed in I.A.No.1 of 2021 in O.S.No.211 of 2017 dated 22.02.2022 on the file of the Principal Sub Court, Karur. For Petitioner : Mr.N.Subramani For Mr.V.Illanchezian For Respondent : Mr.E.K.Kumaresan