@JUDGMENTTAG-ORDER
M. Chockalingam, J.@mdashChallenge is made to an order of the XIII Assistant Judge, City Civil Court, Madras, allowing an application in I.A.
No. 21645/2000 to set aside an ex-parte decree in O.S. No. 5377/2000, a suit for declaration and consequential permanent injunction.
2. The Court heard the learned Counsel for the petitioner and also for the first respondent.
3. In the said suit, the plaintiff, who is the petitioner herein, sought for declaration that certain documents which are described in the plaint, are to be
declared as fabricated and also for consequential permanent injunction. The respondents, who are the defendants therein, two in number, entered
appearance through Counsel; but, the written statement was not filed. The matter was posted on 11.12.2000. But, on that day, the Counsel who
appeared for the defendants, went over to Vellore to attend the funeral ceremony of his grandfather, and hence, he could not come to Court on
that day. Under the circumstances, both the defendants were set ex-parte for non-filing of the written statement that day i.e., on 11.12.2000.
Thereafter, the matter was posted on 12.12.2000 for ex-parte evidence. Accordingly, the evidence was recorded, and the ex-parte decree came
to be passed. The instant application was filed on the next day that was on 13.12.2000, stating the reason for the absence of the party and also the
Counsel. But, the written statement was not filed in time. The lower Court after hearing both sides, has passed the impugned order on 6.10.2004
stating that interest of justice would require that an opportunity should be given to the defendants to defend the suit, but imposed a condition for
payment of cost of Rs. 600/- on or before 12.10.2004. Aggrieved over the said order, the plaintiff has brought forth this revision before this Court.
4. The only contention put forth by the learned Counsel for the petitioner is that in the lower Court, sufficient opportunity was given to the
defendants for filing the written statement; but, they have not cared to file the same; that under the circumstances, rightly they were set ex-parte on
11.12.2000; but, the evidence was recorded on 12.12.2000, and hence, the ex-parte decree has been passed; that there is no reason to set aside
the same; but, the lower Court has set it aside erroneously; that it is a non-speaking order, and hence, it has got to be set aside.
5. The learned Counsel for the respondent would submit that actually, the reasons which impeded the defendants'' Counsel to be present in Court
on 11.12.2000, were made clear in the course of the affidavit; that the ex-parte evidence was recorded on 12.12.2000; that the application was
filed immediately on the next day i.e., 13.12.2000; that it has also been ordered with cost, and under the circumstances, the order of the lower
Court has got to be sustained.
6. After careful consideration of the rival submissions made, this Court is unable to see any merit in the revision. Admittedly, it was a suit for
declaration that the documents alleged to have been executed by the defendants in favour of the plaintiff, were actually fabricated and for
consequential reliefs. At that stage, the written statement was to be filed. The suit was taken on file only in August 2000; but, the matter was
posted on 11.12.2000. It was Monday. The Counsel who appeared for the defendants and who went over to Vellore for the cause mentioned in
the affidavit, could not reach in time, and thus, he could not be present in Court. For the non-appearance of the defendants, they were set ex-
parte, and the matter was posted for recording evidence. Accordingly, the evidence was recorded, and the ex-parte decree came to be passed. In
the instant case, the application was filed to set aside the ex-parte decree on the very next day stating the reasons therein. Under the
circumstances, the lower Court thought it fit to allow the application.
7. The order of the lower Court has got to be sustained for more reasons than one. Firstly, it was a suit for declaration and consequential reliefs. It
was at the stage of filing the written statement, and the suit was filed only in August 2000. They were set ex-parte on 11.12.2000, and the ex-parte
decree came to be passed. The application to set aside the ex-parte decree was filed on the very next day that was on 13.12.2000. In a given
case like this, where the actual reasons are brought to the notice of the Court and the application has also been filed on the next day, the interest of
justice would require that an opportunity should be given to the defendants to put forth the defence, and they have got to be decided on merits of
the matter, which was rightly done by the lower Court. Further, the lower Court has also awarded a cost of Rs. 600/- payable by the defendants.
Under the circumstances, the order of the lower Court has got to be affirmed.
8. Now, it is brought to the notice of the Court by the learned Counsel for the respondents that when the amount of Rs. 600/- was tendered to the
plaintiff''s Counsel, he refused to receive. Further, the learned Counsel for the respondents would submit that if the Court comes to the conclusion
that it is a fit case where the cost could be enhanced, he has no objection for the same. The Court heard the learned Counsel for the petitioner
also. Accordingly, the cost awarded by the lower Court, is enhanced to Rs. 1,000/- (Rupees thousand only) which is payable by each defendant
to the petitioner''s Counsel within a period of four weeks here from .On compliance, the lower Court is directed to proceed with the matter where
it was stopped. If not complied with, the application before the lower Court will stand automatically dismissed.
9. Accordingly, the order of the lower Court is modified, and this civil revision petition is disposed of. No costs. Consequently, connected CMP is
closed.
