A. Deenadayalan (died) vs R. Kamalam

B. Rajendran, J.—This civil revision petition is filed against the dismissal of an application to condone the delay in filing the application to

bring on record the legal representatives of the deceased defendant in the suit. According to the revision petitioners, the suit is for specific

performance, filed in the year 2007, against the father of the petitioners 1 to 3 and the husband of the 4th petitioner. The suit was decreed ex-parte

on 18.7.2007. Thereafter, the original defendant himself filed an application in I.A. No. 2042/2008 to condone the delay of 149 days in filing the

application to set aside the ex-parte decree and that application was filed on 17.3.2008. But, pending that application, he died; but, that was not

brought to the notice of the Court. Ultimately, the said application was dismissed for default on 3.12.2009. After his death and on seeing the

records, the petitioners came to know about the pendency of the case and when they contacted the Counsel, it came to their knowledge and

thereafter, the legal representatives viz. the petitioners herein, had filed the present application in I.A. No. 938/2010 for condoning the delay of

640 days in filing the application for bringing them on record. A counter was filed by the respondent. The lower Court dismissed the application

only on the ground that the earlier application also was there and therefore, they could not have filed the present application.

The main contention of the petitioners'' side is that it is not their intention to drag on the proceedings and even the original defendant during his

life time, has taken steps; but, unfortunately, they were not put on notice, and they have taken steps after his demise and when they came to know

about the proceedings, and this plausible explanation, which they have offered, has not been accepted by the lower Court.

The learned Counsel for the respondent would contend that the suit is of the year 2007 and the petitioners were very well aware of the suit

proceedings; but, they have now come forward with the false affidavit, and the lower Court has rightly dismissed the application and there is

nothing to interfere in it.

The learned Counsel for the respondent would further contend that in the event of this Court allowing the revision, heavy cost may be imposed.

Here is a case, where there is some bona fides, which require consideration. Originally, the suit was filed against the father of the petitioners 1 to

3 and husband of 4th petitioner. The suit was decreed ex-parte. Immediately, the original defendant himself had taken steps and filed an application

for condoning the delay of 149 days in filing the application to set aside the ex-parte decree on 17.3.2008. Admittedly, that application was

pending till December, 2009. But, during the interregnum, the original defendant died on 7.7.2008. Unfortunately, it was not brought to the notice

of the Court by the then Advocate. According to the revision petitioners, they were not aware of the said proceedings and only at a later point of

time, when they checked their belongings, they came to know about the very suit. This explanation, which has been offered by them, is plausible

and reasonable.

Apart from the above, the fact that the original defendant himself had taken steps to set aside the ex-parte decree has to be necessarily taken

note of. Pending that application, he died and therefore, the legal representatives are well within their limits to seek the condonation of delay. I do

not find any reason not to accept the reason set out by the petitioners in their affidavit and hence, the delay has got to be condoned, but with some

terms. In the result, this civil revision petition is allowed setting aside the order of the lower Court, and I.A. No. 938/2010 is allowed on condition

that the petitioners shall pay a sum of Rs. 5,000/- (Rupees five thousand only) to the respondent through the lower Court Counsel on or before

31.10.2013, failing which, the civil revision petition will stand automatically dismissed. No costs.