C. Thukkaraman and Others vs C. Sadasivam

M. Duraiswamy, J.—Challenging the fair and final order passed in I.A. No. 463 of 2012 in I.A. No. 548 of 2011 in O.S. No. 147 of 2008 on the file of District Munsif Court, Sholinghur, the legal representatives of the defendants have filed the above Civil Revision Petition.

The plaintiff filed the suit in O.S. No. 147 of 2008 for declaration, recovery of possession, mesne profits and permanent injunction.

Since the defendants remained ex-parte, the Trial Court passed an ex-parte decree on 23.02.2010. Thereafter, the defendants filed an application in I.A. No. 548 of 2011 to condone the delay of 504 days in filing the application to set aside the ex-parte decree. In the affidavit filed in support of the application, the 3rd defendant has stated that he was suffering from jaundice and therefore, he could not defend the suit and file the application to set aside the ex-parte decree within time. The plaintiff filed his counter and was contesting the application. Thereafter, the defendants again remained absent, therefore, the Trial Court dismissed the said application on 12.12.2011. Further, on 12.12.2011, the learned counsel for the defendants did not argue the matter before the Trial Court. Thereafter, the defendants filed another application in I.A. No. 463 of 2012 to condone the delay of 647 days in filing the application to restore the application in I.A. No. 548 of 2011, which was dismissed for default on 12.12.2011. In the affidavit filed in support of the application, the defendants have stated that on 12.12.2011, their counsel could not argue the matter and there was a delay in getting the documents, which according to them is neither willful nor wanton. Except stating that, the defendants have not given any other acceptable reason for condoning the inordinate delay of 647 days in filing the application to restore the application.

As already stated, this is the second occasion the defendants remained absent before the Trial Court. On the first occasion, there was a delay of 504 days in filing the application to set aside the ex-parte decree and on the second occasion, there is a delay of 647 days in filing the application to restore the application in I.A. No. 548 of 2011.

The Hon''ble Apex Court as well as this Court has repeatedly held that in the absence of sufficient cause shown by the party, the delay cannot be condoned.

However, Mr. A. Gouthaman, learned counsel appearing for the petitioners, in support of his contention, relied upon the following judgments:--

"(i) Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and Others, , wherein the Hon''ble Supreme Court held that an application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone the delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. Further, the Apex Court held that the conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factor to be taken into consideration.

(ii) Ajay Kumar Gulecha Vs. J. Vijayakumar and Others, wherein this court held that law of limitation has not been enacted for destroying the rights of the parties and the case has to be decided on merits.

(iii) 2005 (3) MLJ 431 (Selvi v. Selvammal), wherein this court held that "Sufficient cause" should be liberally construed so as to advance substantial justice and when there is no inaction or negligence, the delay should be condoned.

(iv) G. Krishnamoorthy Vs. Arulmighu Sri Pataleeswarar Devasthanam, , wherein this court condoned the delay of 993 days observing the reason that the petitioner did not receive communication from his lawyer is true. Further, this court held that an innocent party cannot suffer injustice because of the default of his Advocate.

(v) Misiriya Umma and Others Vs. Mary Perez and Others, . In this judgment also this court held that because of the mistake committed by an Advocate, the party should not suffer and condoned the delay of 116 days in filing the appeal on the ground that the Advocate had misplaced the memorandum of appeal."

In the case on hand, the petitioners have not given any acceptable reason for condoning the inordinate delay of 647 days. Further, the contention of the parties would clearly establish that they were not diligent in prosecuting the matter in a proper manner for the reason that the present application has been filed to restore the application filed by them to condone the delay of 504 days in filing the application to set aside the ex-parte decree. Having slept over for more than 647 days, the petitioners have come forward to file the application to restore the application. Even on the earlier occasion, to set aside the ex parte decree, there was a delay of 504 days and the 3rd defendant has stated that he was suffering from jaundice. On the second occasion, absolutely the petitioners have not given any reason for the delay of 647 days. The reasons given in the affidavit filed in support of the application cannot be accepted. The Trial Court, taking into consideration all these aspects, rightly dismissed the application.

Since the facts and circumstances of the case on hand differs from the judgments relied upon by the learned counsel for the petitioners, the judgments are not applicable to the present case.

I do not find any error or irregularity in the order passed by the Trial Court. The Civil Revision Petition is devoid of merits and is liable to be dismissed. Accordingly, the Civil Revision petition is dismissed. No costs.