KARTHIKEYAN Vs. K.K.RAMESH BABU

JUDGEMENT

(1.) The petitioner / plaintiff has laid the suit, in O.S.No.1603 of 2006, on the file of the Principal District Munsif Court, Madurai Town, for the reliefs of declaration and it is found that the respondents herein are the defendants 1 to 9 in the said suit. It is further found that the above said suit of the petitioner / plaintiff was originally instituted as a pauper original petition in P.O.P.No.72 of 1988, on the file of the Sub Court, Madurai and thereafter, on the basis of the pecuniary jurisdiction, it is found that the above said suit had come to be transferred to the Principal District Munsif Court, Madurai and renumbered as O.S.No.1603 of 2006. It is found that the defendants 1 to 9 had entered appearance in the suit, when the matter was pending at the stage of in forma pauperis, through an Advocate by name M.N.Sankaran and contested the matter. Further, it is found that the request of the petitioner / plaintiff to permit him to file the suit in forma pauperis was negatived by the Court below. It is further found that after the intervention of the High Court, the pauper original petition had been converted into a regular suit as adverted above and even thereafter, the defendants 1 to 9 have been contesting the suit of the plaintiff and taking time for filing their written statement in the matter. It is further found that from 1999 onwards, the suit had been listed for filing written statement by the defendants in the suit and finally only some defendants have filed their written statement and accordingly, on 27.02.2003, inasmuch as the other defendants did not file written statement, they were called absent and resultantly, set ex parte. It is found that thereafter, issues were framed in the suit and the suit had been posted for trial. These happenings had occurred when the suit had been pending on the file of the Sub Court, Madurai. Thereafter, it is found that at the trial stage of the suit, on account of pecuniary jurisdiction, the suit had come to be transferred to the Principal District Munsif Court, Madurai and renumbered as O.S.No.1603 of 2006. It is, thus, found that the defendants 1 to 9 had been set ex parte in the suit even when the matter was pending on the file of the Sub Court, Madurai. In such view of the matter, it is found that inasmuch as the suit had been contested by the other defendants in the matter when the suit had been transferred to the file of the Principal District Munsif, Madurai, on account of pecuniary jurisdiction and inasmuch as the defendants 1 to 9 had already been set ex parte, according to the learned counsel for the plaintiff, on such transfer, it is not necessary to send notice to the defendants 1 to 9, who had already been set ex parte in the suit proceedings. Thereafter, on the suit having been transferred to the Principal District Munsif Court, Madurai, when the suit was listed for trial and inasmuch as the remaining defendants had also not contested the suit and remained ex parte, it is found that the ex parte decree had come to be passed as against all the defendants on 16.11.2007.

(2.) Now, the defendants 1 to 9 have come forward with an application to set aside the ex parte decree passed against them in the suit on 16.11.2007 and inasmuch as there is a delay of 2735 days in filing the said application, it is found that the defendants 1 to 9 have laid the application in I.A.No.441 of 2015 to condone the said delay. The reasons given by the defendants 1 to 9 for the said delay is that they were not aware of the ex parte decree passed in the suit on 16.11.2007 and though they had engaged an Advocate M.N.Sankaran to defend their cause and inasmuch as, according to them, no intimation or information had been received from the said Advocate as to the progress of the suit and as they were bona fidely believing that the said Advocate would inform them about the status of the suit and as their Advocate had not sent any communication, according to them, they were unable to know the progress of the suit and further, according to them, only on 12.12.2014 they had come to know about the ex parte decree passed in the suit as by that point of time, according to them, the plaintiff had filed a claim application in the TANPID Court for raising the attachment and accordingly, on coming to know about the ex parte decree passed against them, it is stated that they have taken steps to set aside the same and hence the delay had occurred. It is found that in the affidavit, the defendants 1 to 9 have not stated that they are unaware of the transfer of the suit from the Sub Court, Madurai, to the Principal District Munsif Court, Madurai, on account of the pecuniary jurisdiction. A reading of the reasons given by the defendants 1 to 9 for the condonation of the delay would only go to disclose that they have thrown the entire blame on the Advocate M.N.Sankaran for the ex parte decree passed against them and further, according to them, the said M.N.Sankaran had acted in collusion with the plaintiff and acted against their interest and thereby it is stated that the ex parte decree had been passed without their knowledge and hence, the same is liable to be set aside.

(3.) The above said application of the defendants 1 to 9 had been stiffly resisted by the plaintiff contending that all along the defendants 1 to 9 had been represented by their Advocate in the suit proceedings right from its inception and they have been fighting tooth and nail and accordingly, the Court below had been granting adequate time for filing written statement on their behalf and inasmuch as they had not filed written statement, accordingly they were set ex parte and the suit proceeded along with the contest of the other defendants and thereafter, on the question of pecuniary jurisdiction, the suit had come to be transferred to the Principal District Munsif Court, Madurai and thereafter, inasmuch as the other defendants also did not contest the matter and remained ex parte, the ex parte decree had come to be passed in the suit on 16.11.2007. It is the further case of the plaintiff that the defendants 1 to 9 have conveniently thrown the blame on their Advocate M.N.Sankaran for justifying the huge and inordinate delay and if the defendants 1 to 9 have diligently followed the case and had a good case to defend the matter, they would not have waited endlessly for more than 7 + years for the intimation about the progress of the suit from the Advocate concerned and on the other hand, inasmuch as they have no case at all to defend, it is stated that the defendants 1 to 9 have not taken care to file the written statement and also not contested the matter as per law and only thereafter, it is alleged that the defendant 1 to 9's power agent, on seeing the efforts of the plaintiff' to raise the attachment of the property concerned in the TANPID Court, had preferred the application without any sufficient cause and it is further stated that even as per the case of the defendants 1 to 9, on coming to know about the ex parte decree on 12.12.2014, even thereafter also immediately they have not preferred the application to set aside the ex parte decree and only 22.06.2015, the application has come to be preferred and hence, it is stated that with a view to cause irreparable loss and hardship to the plaintiff and to delay the proceedings endlessly, the defendants 1 to 9 have come forward with the delay condonation application containing false reasons and hence, the application is liable to be dismissed.