Jayaprakash, Vijaya vs Kamala

P. Sathasivam, J.—The Civil Revision Petition is directed against the order of the learned District Munsif, Mettur dated 7-6-2004, made in

I.A. No. 749 of 2003 in O.S. No. 301 of 94 in and by which the learned Judge refused to condone the delay of 2514 days in filing petition under

Order 9 Rule 13 to set aside the ex parte decree dated 23-2-96. In the affidavit filed in support of the said application, it is stated that on receipt

of notice from the Court, they appeared through a lawyer. The counsel who appeared on behalf of the petitioners did not give proper information

about the suit to them. Hence, they were set ex parte and decree was passed on 23-2-96. The said fact was also not brought to the knowledge of

the petitioner by their counsel in time. Subsequently, the petitioner handed over the case bundle to another counsel, the said counsel after going

through the relevant papers stated that an application has to be filed to amend the plaint in O.S. No. 442/95 and based on the said instruction, an

application was filed and the same was allowed. The said suit is still pending. In the meantime, their counsel Thiru K.S. Ramanathan also died.

Again the petitioner handed over the case bundle to another counsel to prosecute the suit. On going through the papers, the said counsel opined

that it is not proper to seek the relief of setting aside the ex parte decree. They advised the petitioners to file a separate application to set aside the

ex parte order passed in O.S. No. 301/94. Thereafter, on the advice of the present counsel, the petitioners filed the present application under

Order 9 Rule 13. Thus, there is a delay of 2514 days and the said delay is neither wilful nor wanton. The said application was resisted by the

respondent/plaintiff stating that the petitioners have not explained the delay properly and only to protract the trial in O.S. No. 442/95, the present

application has been filed. There is no proper explanation.

The first petitioner was examined as P.w. 1. The learned District Munsif after considering the claim of both parties, after holding that there is

inordinate delay and the same has not been properly explained, dismissed the said petition, hence the present Revision. I have gone through the

reasons stated in the affidavit filed in support of the petition, the objection raised by the respondent/plaintiff, the evidence of P.W.1 and the

impugned order under challenge. It is seen from the evidence of P.W.1 that the petitioners were aware of passing of the decree much prior to the

filing of the present application. After going through the reasons stated in the affidavit and the evidence of P.W.1, 1 am satisfied that the petitioners

have not shown sufficient cause for condoning the delay in preferring the petition to set aside the ex parte decree. As rightly observed by the

learned District Munsif, the ex parte decree cannot be set aside in a casual manner more so. when sufficient cause is not established by the party.

Inasmuch as the Court below after considering the claim of both parties and after finding that there is no sufficient cause for condonation, dismissed

the petition filed u/s 5 of the Limitation Act, in the absence of any other material, I do not find any error or infirmity or valid around for interference;

hence the Revision fails and the same is dismissed. Connected C.M.P. is also dismissed.