K. Krishnasamy vs K. Palanivel

K. Ravichandrabaabu, J.—The petitioner is the defendant in a suit for bare injunction filed by the respondent herein in O.S. No. 18/2006 on

the file of the District Munsif Court, Namakkal. He is aggrieved against the order passed in I.A. No. 1291/2011 in dismissing the application filed

u/s 5 of the Limitation Act, seeking to condone the delay of 1904 days in filing the petition to set aside the ex parte decree dated 26.04.2006.

Heard Mr. R. Nalliyappan, learned counsel appearing for the petitioner and perused the materials placed before me.

It is seen that an ex parte decree came to be passed on 26.04.2006. The petitioner filed an application u/s 5 of the Limitation Act in I.A. No.

1291 of 2011 seeking to condone the delay of 1904 days in filing the petition to set aside the ex parte decree. The court below rejected the said

application by holding that the petitioner has not given sufficient cause for condoning such huge delay.

It is contended by the learned counsel for the petitioner that in fact, the very same application was earlier allowed on 01.03.2012 on condition

to pay a sum of Rs. 5,000/- as cost and the petitioner had also paid the cost on 09.03.2012. However, the plaintiff filed an application in I.A. No.

364/2012 to set aside the said ex parte order passed on 01.03.2012. It is submitted by the learned counsel that the said I.A. No. 364 of 2012

was allowed by the court below and consequently, I.A. No. 1291 of 2011 was restored. Therefore, he submitted that when the very same court

has allowed the I.A. on earlier occasion, there was no reason as to why the said application to be dismissed now after restoration. Therefore, he

submitted that the order passed by the court below is totally erroneous.

Even according to the learned counsel for the petitioner, the ex parte order passed on 01.03.2012 in I.A. No. 1291 of 2011 came to be

restored in pursuant to the order passed in I.A. No. 364/2012. Such order of restoration was not challenged by the petitioner and on the other

hand, he allowed the restoration of I.A. No. 1291 of 2011 to become final. Therefore, the learned counsel cannot rely upon the earlier order

passed on 01.03.2012 to contend that the present order passed is erroneous. Thus, it leaves me to consider the merits of the matter based on the

order passed by the court below.

The delay is 1904 days. When the affidavit filed in support of the condone delay application is perused, it shows as if there are some criminal

complaints filed against the petitioner and some alleged harassment by the plaintiff. Thus, he contended that in view of such situation, he could not

contact his counsel to take steps to file the set aside petition. Needless to state that mere filing of an affidavit is not sufficient to hold that the

reasons stated therein are genuine and sufficient cause for condoning such enormous delay unless such averments are proved by letting in evidence

by the petitioner. Certainly, it is his bounden duty to prove the same before the court by examining necessary witnesses and marking relevant

documents. In the absence of such examination, the contention put forth by the petitioner as such, cannot be accepted as true statement and the

court below has rightly rejected the petition by holding that he failed to show and establish sufficient cause. Thus, I am of the view that the order

passed by the court below in exercising its discretion does not warrant any interference and consequently, I find no merits in the civil revision

petition. Accordingly, the same is dismissed. No costs. The connected miscellaneous petition is closed.