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Saturday, May 16, 2015

Sec.5 of Limitation Act - Or.9, rule 13 of C.P.C. - Delay of 355 days in one suit and delay of 382 days in another suit - Reason for delay only after seeing the paper publication - Trial court order to deposit decreed amount for settling aside the decree else would be dismissed automatically - High court confirmed the same - Apex court held that though the court has got discretion to impose some costs or to direct to deposit part of suit claim but should not have imposed such an unreasonable and onerous condition of depositing the entire suit claim of Rs.1,50,00,000/- and Rs.10,00,000/- respectively in the suits when the issues are yet to be decided on merits - set aside the orders of Trail court and High court - 2015 S.C.MSKLAWREPORTS



 The
respondents filed the suit being O.S.No.3/2011 for recovery of  the  sum  of
Rs. 1,50,00,000/- with interest.  The case was adjourned from time  to  time
on various dates.
On 16.06.2011, the  appellants-defendants  were  set  ex-
parte in the suit.  After recording evidence  adduced  by  the  respondents-
plaintiffs  on  5.07.2011,  the  said  suit  was  decreed  ex-parte  by  the
Principal District Judge, Thanjavur.


Respondents have also filed another suit O.S. No.6 of  2011  for
recovery of a sum of Rs.10,00,000/- said to have been paid by  them  to  the
appellants by way of an advance towards the purchase  of  another  property.
The said suit was decreed  ex-parte  on  16.06.2011.  
The appellants filed I.A.No.77 of 2012 and I.A.  No.78  of  2012
in both the suits praying for condonation of delay of    355  days  and  382
days respectively in filing the applications under Order  IX  Rule  13  CPC,
for setting aside the ex-parte decrees.
The appellants  averred  that  they
came to know about the ex-parte decrees only on 13.07.2012, when they saw  a
public notice in the daily newspaper regarding the attachment  of  the  suit
property.
The Principal  District  Judge,  Thanjavur  vide  separate  order
dated 4.12.12 condoned the delay of 355 days and  382  days  in  filing  the
applications under Order IX Rule 13  CPC  for  setting  aside  the  ex-parte
decree and allowed the applications in IA No.77 of 2012 and  I.A.  No.78  of
2012  but  subject  to  condition  that  the   appellants   should   deposit
Rs.1,50,00,000/- and Rs.10,00,000/- respectively in the court on  or  before
3.01.2013,  failing  which  the  applications   will   automatically   stand
dismissed.
High court confirmed the same
Apex court held that
 It is well settled that the expression ‘sufficient cause’ is  to
receive liberal construction so as to  advance  substantial  justice.   When
there is no negligence, inaction or want of bonafide  is  imputable  to  the
appellants, the  delay  has  to  be  condoned.   The  discretion  is  to  be
exercised  like  any  other   judicial   discretion   with   vigilance   and
circumspection.  The discretion is not to be  exercised  in  any  arbitrary,
vague or fanciful manner.  The true test is to  see  whether  the  applicant
has acted with due diligence.

While exercising the discretion for setting aside  the  ex-parte
decrees or condoning the delay in filing the application to  set  aside  the
ex-parte decrees, the court is competent to direct the defendants to  pay  a
portion of the decreetal amount or the cost

 Costs  should  be  so  assessed  as  would  reasonably  compensate  the
plaintiff for the loss of time and inconvenience caused by  relegating  back
the proceedings to an earlier stage. The terms which the  court  may  direct
may take care of the time or  mode  of  proceedings  required  to  be  taken
pursuant to the order under Rule 7. ….…the court cannot exercise  its  power
to put the defendant-applicant on such terms  as  may  have  the  effect  of
prejudging the controversy involved in the suit and virtually decreeing  the
suit though ex parte order has been set aside or to put the parties on  such
terms as may be too onerous……… That condition in  the  order  of  the  trial
court having been set aside by the High Court, we are  inclined  to  sustain
the order of the High Court but subject  to  certain  modification.  In  our
opinion the High Court was justified in setting aside the condition  imposed
by the trial  court  in  its  order  which  was  too  onerous,  also  vague,
uncertain and suffering from want of clarity.  The order of the  High  Court
to the extent of setting aside the ex parte proceedings  and  directing  the
expeditious trial of the suit has to be sustained as it serves the  ends  of
justice….”

  In  the  present  case,  while  the  trial  court  has  exercised  the
discretion to condone the delay in filing the applications to set aside  the
ex-parte decrees, in our view, the trial court should not have imposed  such
an unreasonable and onerous condition of depositing the  entire  suit  claim
of Rs.1,50,00,000/- and Rs.10,00,000/- respectively in the  suits  when  the
issues are yet to be decided on merits. While considering the revision,  the
High Court should have kept in view that the  parties  are  yet  to  go  for
trial and the appellants ought to have  been  afforded  the  opportunity  to
contest the suits on merits.  When the  S.L.Ps  came  up  for  admission  on
1.08.2013, this Court passed the conditional order that subject  to  deposit
a sum of Rs.50,00,000/- before the trial court, notice shall  be  issued  to
the   respondents.  In  compliance  with  the  order  dated  1.08.2013,  the
appellants have deposited Rs.50,00,000/- before the trial court.  Since  the
appellants have satisfactorily explained the reasons for the delay and  with
a view to provide an opportunity to the appellants to contest the suit,  the
impugned order is liable to be set aside.

 The order dated 16.04.2013 of the High Court passed  in  C.R.P.  (NPD)
(MD) No.4/2013 and C.R.P. (NPD) (MD)  No.5/2013,  is  set  aside  and  these
appeals are allowed.  Delay in filing the applications to set aside the  ex-
parte decrees is condoned and the ex-parte decrees passed in  O.S.  No.3  of
2011 and O.S. No.6 of 2011 are set aside and the suits  are  ordered  to  be
restored to file.   The  appellants  shall  file  their  written  statements
within a period of six weeks if not already filed.  Since the suits  are  of
the year 2011 and the respondents are stated  to  be  senior  citizens,  the
trial court is directed to take up the suits at an early  date  and  dispose
of the suits expeditiously.  It is made clear that  we  have  not  expressed
any opinion on the merits  of  the  matter.  The  amount  of  Rs.50,00,000/-
deposited by the appellants before the trial court shall be  invested  in  a
Nationalized Bank so that the accrued interest may enure to the  benefit  of
either party.  In the facts and circumstances of the case, we make no  order
as to costs.-2015 S.C. MSKLAWREPORTS

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