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
