Stay for trial when the lower court dismisses the petition to set aside the ex-parte order
Balaji Bakthavathsal
(Querist) 13 September 2014
This query is : Resolved
A civil suit was filed against 6 respondents in the District Munsif court with the plea to cancel all the fraudulent encumbrances created by them. The suit prolonged for 4 years and all the respondents were declared ex-parte to the suit since none up of them turned up for the hearing. When the judge was about to give the ex-parte judgment, the fourth respondent came up with an I.A. requesting to set aside the ex-parte order on some flimsy grounds but did not justify the delay in filing the set aside request. A counter was filed by me with the plea that the IA should be dismissed with exemplary cost as it was submitted belatedly and without any justification for the delay. Further, I pointed out the fraudulent actions of the person. The fraudulent person deliberately delayed the hearing adjourning it three or four times and finally the judge dismissed the I.A petition on the grounds that it was submitted belatedly.
The suit was posted for trail on another day. As one of the plaintiff of the suit, I went to the court to attend the trial. To my surprise and shock I was told that the trial is held up as the respondent who submitted the IA is approaching the High Court for stay.
Well, I request the learned lawyer to clarify the following doubts:
1) I have seen in most of the suits when the cost of the suit is asked for, in 99.99 % cases, the cost is not granted while an order is issued. Why it is so ? In the present case, the respondent is filing the IA to set aside ex-parte order without any valid reason and that too after a period of three years. Admitting the I.A itself is false through if I am correct. By filing such fraudulent I.A. he has wasted his opponent’s time, money and energy. Over and above, he had wasted the precious time of the court making mockery of the judicial system. Should n’t he be fined for this atleast ?
2) Can the court accede to the request of the petitioner/counsel to hold the proceedings of the suit as he/she intends to take up the matter to the High Court ? The reason for holding the proceeding while a petition submitted in the High Court is understandable. But in anticipation how the judge can stop the proceedings of the suit ?
3) It is agreed that every person has got the right to appeal. But can the individual be allowed blindly for appeal without any justification ? When the individual has not come forward with the facts or ground for his plea, how can he be allowed to appeal and that too after a lapse of three years ?
Thanks & Regards
Balaji
T. Kalaiselvan, Advocate 
(Expert) 20 September 2014
Since the respondent/defendant has rights to appeal against the lower court's order, he has to be given a chance to prove his case before the high court. the lower court cannot prevail on him restraining him from moving an appeal. Moreover, in the first hearing while passing information to the court about preferring appeal, he nee not produce evidence for filing such case before high court, in the net hearing if he is seeking adjournment based on oral submission, you may strongly object to it stating that since there is no stay by high court, the trial in the lower court may continue. Contact your advocate for further opinion.
Balaji Bakthavathsal
(Querist) 20 September 2014
Thanks dear Kalaiselvan Sir, I fully agree that the respondent/defendent has every right to appeal in the higher court. But my question is when the respondent has not given any answer/reply/justification to the lower court, what justification he can make to the higher court. Is it not a contempt to the lower court by refusing or declining to give or produce information to the court ? It is nothing but just dragging the case since he has no grounds to win the suit. Thanks once again for sparing your valuable time and views.
Regards
Balaji
