Ragunathan vs Executive Engineer

Mr. M. Duraiswamy, J.—Aggrieved over the order passed in I.A. No.1869 of 2012 in O.S. No.403 of 2008 on the file of the District Munsif Court, Kangeyam, the plaintiff has filed the above Civil Revision Petition.

The plaintiff filed the suit in O.S. No.403 of 2008 for permanent injunction restraining the respondents/defendants from providing electricity connection to any third person, except the plaintiff. Since the defendants remained absent, the trial Court passed an ex parte decree on 09.10.2009. At the time of passing of ex parte decree, the plaintiff was examined as P.W.1 and two documents were marked on his side. In spite of letting in oral and documentary evidences before the trial Court, the trial Court, even without considering the oral and documentary evidences let in by the plaintiff, passed the judgment which reads as follows :

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On a reading of the judgment passed by the trial Court, it is clear that the District Munsif Court, Kangeyam, has passed the judgment mechanically, even without applying its mind. The Division Bench of this Court, in which, I was also a party to the judgment reported in 2013 (4) CTC 545 (Chitrakala v. P. Mahesh), following the judgment of the Hon''ble Apex Court reported in 2012 (5) SCC 265 : 2013 (4) CTC 865 (SC), (C.N. Ramappa Gowda v. C.C. Chandregowda (Dead) by LRs and another) the Division Bench held as follows :-

"16. In the present case, the plaint itself indicates that there are disputed questions of fact involved in the case giving rise to two versions. Therefore, it is not safe for the Court to record an ex parte judgement without directing the plaintiff to prove the facts so as to settle the factual controversy. It is also well acknowledged by the legal dictum that assertion has no proof and hence, the burden lies on the plaintiff to prove that the property is available for partition. Even if there was no written statement to the contrary or any evidence of rebuttal, the burden is on the plaintiff to prove his case.

In our view, the trial Court clearly adopted an erroneous approach inferring that merely because there was no evidence of denial or rebuttal, the plaintiff''s case can be held to have been proved. Therefore, we are of the view that the judgment and decree of the trial Court are liable to be set aside and the matter should be remitted back to the trial Court for fresh disposal."

Observing so in the judgment, the Division Bench set aside the judgment and decree of the trial Court and remanded the matter for fresh disposal. The ratio laid down in 2013 (4) CTC 545 squarely applies to the facts and circumstances of the present case.

After the passing of ex parte decree on 09.10.2009, the defendants viz., the Electricity Board Authorities filed a petition in I.A. No.1869 of 2012 to condone the delay of 1110 days in filing the petition to set aside the ex parte decree. In the affidavit filed in support of the petition, the 3rd defendant has stated that their bundle got mixed up with some other bundle and therefore, they could not give any instructions to their counsel to file written statement and to appear before the trial Court. They have also stated that they came to know about the ex parte decree at a belated stage and hence, there is a delay of 1110 days in filing a petition to set aside the ex parte decree. The plaintiff filed his counter stating that the averment stated in the affidavit filed in support of the application cannot be accepted and that the defendants have not given any acceptable reason for condoning the delay of 1110 days. The trial Court, after taking into consideration the case of both parties, condoned the delay on payment of cost of Rs. 2,000/- to the plaintiff. While condoning the delay, the trial Court also took into consideration the judgment passed by the trial Court.

Mr. N. Manokaran, the learned counsel appearing for the petitioner submitted that the defendants have not given any acceptable reason for condoning the long delay of 1110 days and in support of his contention relied upon a judgment reported in (2012) 5 Supreme Court Cases 157 [Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai] wherein the Hon''ble Apex Court held that in the absence of sufficient cause shown by the parties, the delay cannot be condoned.

In the case on hand, I had an occasion to dispose of the Civil Revision Petition in C.R.P (PD).No.814 of 2015 filed by the alleged occupiers of the suit property in O.S. No.403 of 2008 for declaration to declare the decree passed in O.S. No.403 of 2008 as null and void. The said Civil Revision Petition was filed by the alleged occupiers of the property stating that the trial Court had declined to grant an order of interim stay of the decree passed in O.S. No.403 of 2008. In the suit in O.S. No.368 of 2014 on the file of the District Munsif Court, Kangeyam, the trial Court declined to grant an order of interim stay of the decree passed in O.S. No.403 of 2008 finding that the present Civil Revision Petition in C.R.P (PD).No.3275 of 2013 is pending. The Civil Revision Petition in C.R.P (PD).No.814 of 2015 was allowed by order dated 04.06.2015 and consequently, the application in I.A. No.1985 of 2014 in O.S. No.368 of 2014 was allowed, thereby, the decree in O.S. No.403 of 2008 was stayed, pending disposal of the suit in O.S. No.368 of 2014. By the filing of the suit in O.S. No.368 of 2014, it is clear that even the aggrieved parties in the suit in O.S. No.403 of 2008 were not made as defendants. The trial Court, being satisfied with the reasons stated by the defendants in the affidavit filed in support of the application to set aside the ex parte decree, rightly condoned the delay on payment of cost of Rs. 2,000/-.

Mr. N. Manokaran, the learned counsel for the petitioner submitted that the cost of Rs. 2,000/- awarded by the trial Court is very low and that the same may be increased.

Having regard to the submissions made by the learned counsel for the petitioner, the cost of Rs. 2,000/- awarded by the trial Court is increased to Rs. 5,000/-. The respondents shall pay the said amount of Rs. 5,000/- (Rupees Five Thousand only) to the counsel appearing for the petitioner in this Civil Revision Petition within two weeks from the date of receipt of a copy of this order. Except the modification with regard to the cost as stated above, the order passed by the trial Court in I.A. No.1869 of 2012 in O.S. No.403 of 2008 is confirmed.

The Civil Revision Petition is disposed of as stated. No costs. Consequently, the connected miscellaneous petition is closed.