Gomathi Ammal vs Madhusoodanan Nair and Another

P. Sathasivam, J.—Eighth defendant in O.S.No. 192 of 1992 on the file of Additional District Munsif, Kuzhithurai aggrieved against the

order in I.A.No. 109 of 1994 wherein the court below has dismissed his petition filed u/s 5 of the Limitation Act, has approached this Court by

way of the present revision.

In the affidavit filed in support of I.A.No. 109 of 1994 the petitioner herein submitted that she came to know that an ex parte decree was

passed against her on 23.9.92 only on 20.11.93 through her present advocate. She further contended that for the last 30 years she is residing at

Bangalore and 1982 onwards she was suffering from rheumatism and due to the said ailment she could not move freely. In those circumstance, she

did not go over to Kuzhithurai to ascertain the position of the case. Only on 20.11.93 she came to know about the ex parte decree passed against

her on 23.9.92 through her present counsel and immediately she filed the present petition within 30 days which is from the date of her knowledge.

A counter affidavit has been filed by the respondents 1 and 2 herein wherein it is contended that the petitioner/8th defendant, plaintiff and

defendants 7,9 and 10 are sisters. She is also a daughter of second plaintiff. It is also contended that in view of the close relationship, the 8th

defendant was aware of the court proceedings. Even on merits they contended that 8th defendant has no defence. No oral evidence was let in by

either side. The petitioner/8th defendant alone has filed a medical certificate dated 25.11.93. Inasmuch as the petitioner herein has not deposed

before the court explaining the respondent/respondents for her absence, after accepting the case of the respondents, dismissed the said I.A.

Mr. K. Sreekumaran Nair, learned counsel appearing for the petitioner, submitted that the petitioner had sufficient reasons for her absence and

she has rightly filed the medical certificate with regard to her ailment. On the other hand, Mr. T.R. Rajaraman, learned counsel appearing for the

respondents, vehemently contended that absolutely there is no merit in the present petition, since the petitioner was related to the plaintiff and other

defendants, the allegation that she was not aware of the suit proceedings is utter false-hood. He also submits that in the absence of any explanation

for non-examination production of medical certificate, may not be relied upon. He has also brought to my notice that all the other defendants were

also set ex parte and they have not taken any step to set aside the same. I have carefully considered the rival submissions.

It is seen that the suit was numbered on 1.4.92 and summonses were issued returnable by 17.6.92. From 17.6.92 the suit has been reposted to

17.9.92. On that date D.1, D.3, D.4, D.5, D.6, D.7, D.9, and D. 10 were called absent and set ex parte and fresh summonses were ordered to

be issued to 2nd and 8th defendants through court and post returnable by 17.8.92. On 17.8.92 second defendant was called absent and the court

below adjourned the suit to 17.9.92. On that date, 8th defendant was called absent and she was set ex parte. Thereafter the court below

adjourned the case to 23.9.92 for ex parte evidence. On 23.9.92 P.W-1 was examined. Exs.A-1 to A-3 were marked. Preliminary decree was

passed as prayed for with costs.

On 2.12.93 the petitioner, 8th defendant filed two applications, one is to set aside the ex parte decree which is numbered as I.A.No. 110 of

1994 and the other is to condone the delay which is numbered as I.A.No. 109 of 1994. In the delay condonation petition it is contended that the

plaintiffs have no right in the suit property, 8th defendant alone has got equity of redemption under a will executed by her father in 1963. She also

contended that the plaintiffs and other defendants colluded with each other and filed the suit. Further she averred that 8th defendant is residing in

Bangalore for the last 30 years and she has been suffering from rheumatism. According to her, she had the knowledge of the ex parte decree only

on 20.11.93 from her present lawyer. It is seen from the above particulars that no sufficient reasons for her absence on 17.9.92 and 23.9.92 were

either stated in the affidavit nor explained by her by way of oral evidence. More over the said application was filed after a long delay of one year, 2

months and 7 days. As a matter of fact, in the present application, she has not even mentioned the days of delay to be condoned. It is settled law

that in cases wherein summons is served, the period of limitation starts from the date of decree. There is no averment or complaint that the

petitioner, 8th defendant had not been served with proper summons. As a matter of fact, the learned counsel for the petitioner has not disputed the

fact of service of summons on the 8th defendant, even though a ground has been taken in the revision. As rightly pointed out by the learned counsel

for the respondents, when 8th defendant has no complaint or even no averments in the affidavit that summons was not served on her, the period of

limitation starts to run from the date of decree and the knowledge of the party is immaterial. As already stated in the petition or in the affidavit, the

days of delay is silent. In other words, the petitioner has neither stated the number of days of delay nor explained the cause of delay which goes

without saying that there is sufficient cause to condone the delay. I am also in entire agreement with the contention raised by the learned counsel for

the respondents, namely, the medical certificates filed along with I.A.No. 109 of 1994 will not help and of no use to improve the case of the

petitioner in the absence of her oral evidence. In a similar circumstance, Srinivasan, J. (as he then was) in a judgment reported in Sri Pillaiyarpatti

Karpaga Vinayagar Koil Nagarathar Trust Vs. R.M. Sevagan Chettiar, held in the following manner:-

It has been repeatedly held by this Court that ex parte decrees cannot be set aside on vague allegations that the defendant was ill. It is for the

defendant to prove that he was so ill on the particular day that he could not attend court. Until then, it could not be said that there was sufficient

cause for his non-appearance. Without proving the sufficient cause to the satisfaction of the court, no person can claim to have the ex parte decree

set aside. In this connection, the ruling of this Court in Selvakumar Rice and Oil Mills Vs. Tamil Nadu Electricity Board and Another, can be

looked into. The learned Chief Justice has laid down the proposition that ex parte decrees cannot be set aside on vague allegations of illness.

In our case also, except the production of medical certificate, the petitioner herein has not explained the delay by examining herself. A reading of

Order 9, Rule 3, C.P.C., clearly shows that the applicant must satisfy the Court that the summonses were not duly served or she was prevented by

any sufficient cause from appearing when the suit was called on for hearing. In this case, as already stated, there is no averment that summons was

not served on her. Failure to adduce evidence for non-appearance, the vague allegation that she was ill and mere production of medical certificate

are not sufficient to prove her illness unless the party gets into the box and speaks about the same. Admittedly in our case the petitioner has not

entered the box and spoken in support of the medical certificate. In those circumstance, the decision referred to in the above case as well as the

other decision of the learned Chief Justice reported in Arukkani Ammal v. Guruswamy, 100 L.W. 707 are squarely applicable to our case. Since

we are concerned with the reason or reasons for condoning the delay in filing petition to set aside the ex parte decree, I am not discussing the

merits of the case as argued by the learned counsel for the petitioner.

Net result, I do not find any error in the order of the court below. Accordingly, the Civil Revision Petition fails and the same is dismissed.

However, there will be no order as to costs. C.M.P. No. 11105 of 1996 is also dismissed.