Mariappan vs Prema

S. Palanivelu, J.—The Petitioner herein is the 2nd Defendant in O.S. No. 158 of 2006 on the file of the Principal District Munsif, Srivilliputhur. The said Suit is for partition. When the Suit was posted for cross-examination of PW1 on 26.3.2009, the Petitioner herein 2nd Defendant, who is conducting the case in respect of the other Defendants also, was suffering from jaundice and was taking country medicines and hence, he could not contact his Advocate and give instructions. Since the Defendants were not present before the Court, they were set ex parte and an ex parte preliminary decree was passed on 26.3.2009. When the Petitioner herein/2nd Defendant received notice from the Court in the Petition filed for passing final decree, he came to know that ex parte preliminary decree was passed in the Suit. After his recovery from his illness, the Petitioner herein,2nd Defendant contacted their Counsel and filed a Petition to set aside the ex parte preliminary decree. In the meantime, there was a delay of 183 days in filing the Petition to set aside the ex part'' preliminary decree. Hence, the Petition was filed to condone the delay in I.A. No.1564 of 2009. According to the Petitioner, the delay is not wilful, and hence, the delay in filing the Petition to set aside the ex parte preliminary decree may be condoned.

In the Counter Affidavit filed by the Respondents 1 & 2 herein/ Plaintiffs, it is alleged that already an ex parte decree was passed on 26.10.2006 on account of non appearance of the Defendants and since the Defendants did not take further steps to set aside the ex parte decree, the Plaintiffs filed an Application for passing final decree in I.A. No. 606 of 2007 and the same was posted for filing counter. At that time also, the Defendants filed Application to condone the delay of .183 days in filing Application to set aside the ex parte decree and the said Application was allowed on condition that the Defendants have to pay a sum of Rs. 400/- as costs to the Plaintiffs. Hence, I.A. No. 606 of 2007, which was filed for passing final decree, was also closed. Thereafter. the case was posted to 16.20.2009 for trial and PW1 was examined and Ex.A.1 to A.11 were marked. Thereafter. because of the absence of the Defendants, the case was adjourned to 25.2.2009. For the same reason. the case was adjourned to 9.3.2009, 16.3.2009, 18.3.2009.. 25.3.2009 and lastly to 26.3.2009. The Defendants wantonly failed to make appearance before the Court allowing the Suit to be decreed ex parte on 26.3.2009. On the basis of the ex parte decree, the Plaintiffs have filed I.A. No.948 of 2009 for passing final decree and on 9.11.2009, the Defendants have filed counter also and it was posted on 6.1.2010 for enquiry. In view of the aforesaid reasons, it is clear that knowing fully well that they have no case, only t.o drag on the proceedings, the Defendants left the case to be decreed ex parte and they have come forward with the false reasons that the 2nd Defendant, who is conducting the case on behalf of the other Defendants also, was suffering from jaundice and taking treatment. The Affidavit is bereft of any particulars as to on what date the 2nd Defendant was affected by jaundice and on what date he contacted his Counsel. There is no impediment for the Defendants 1 & 3 to talk to their Advocate, when the 2nd Defendant was indisposed. Only to harass the Plaintiffs, the condone delay Application has been filed. There is no sufficient reason for condoning the delay. Hence, the Application has to be dismissed.

After hearing both sides and considering the evidence on records, the learned Principal District Munsif, Srivilliputhur, has dismissed the Application stating that on previous occasion also, the Defendants left the case to be decreed ex parte and thereafter, the ex parte decree was set aside and that once again the Defendants left the Suit to be ex parte decreed and that. the reasons stated by the Defendants are not sufficient to condone the delay.

The learned Counsel for the Petitioner would submit that the Petitioner has shown sufficient. cause for the delay of 183 days, even though the Defendants were absent on one occasion and the ex parte decree was set aside, it will not be an impediment for the Defendants to prefer condonation of delay Petition for the present occasion and that they have properly explained the reasons for the delay and that the delay may be condoned.

The learned Counsel for the Respondent 1 & 2/Plaintiffs would submit. that there is no material to show from what. date the 2nd Defendant was suffering from jaundice and on what date he contacted his Advocate and that the reasons stated by the 2nd Defendant could not be treated to have been sufficiently explained and that the earlier conduct of the Defendants would convey that they are trying to drag on the case by remaining ex parte and filing delay condonation Application.

The learned Counsel for the Petitioner/2nd Defendant would place reliance upon the decision of the Honourable Supreme Court reported in G.P. Srivastava v. R.K. Raizada and others, 2000 (3) SCC 54, wherein it has been held as follows :

"Under Order 9, Rule 13, C.P.C. an ex parte decree passed against. a Defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the Defendant or he was prevented by any "sufficient cause" from appearing when the Suit was called on for hearing. Unless "sufficient cause" is shown for non-appearance. of the Defendant in the case on the date of hearing, the Court. has no power to set aside an ex parte decree. The words ''was prevented by any sufficient cause from appealing" must be liberally construed to enable the Court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order 9, Rule 13, has to be construed as an elastic expression for which no hard and fast Guidelines can be prescribed. The Courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The ''sufficient cause''. for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If -sufficient cause'' is made out for non-appearance of the Defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the Defendant approaches the Court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits."

In the above said case, the ex parte decree was passed on 10.3.1983 and Application for setting aside the ex parte decree was filed on 7.4.1983 within 30 days. However, it was dismissed by the Trial Court assigning reason that the Medical Certificate filed by the Appellant therein was not from the Government Doctor, but from a private Doctor. The High Court also dismissed the Revision filed by the aggrieved party. The Honourable Supreme Court, on further Appeal, allowed the Appeal stating that sufficient. cause has been made for non appearance of the Defendant therein on the date fixed for hearing and he cannot be penalized for any previous negligence, which had been overlooked, and thereby condoned the delay. Further it is observed that. in the case where Defendant approachs the Court. immediately and within the stipulated time specified, the discretionary power is exercised in his favour treating the absence as not made intentionally.

The facts in the said case are different from the facts of the present case. In the present case, in earlier occasion also there was a delay of nearly 6 months and the Court condoned the delay on Application. In the present occasion also, the Defendants have come forward with Application for condonation of delay of 183 days. They have not shown sufficient reasons for the delay in approaching the Court within the statutory time specified. When the 2nd Defendant was unable to contact his Advocate, there is no embargo for the Defendants 1 & 3 to contact their Advocate. Further, the period of illness is absent in the Application. Under these circumstances, the Petitioner could not take recourse to the benefit of the above said decision of the Honourable Supreme Court. The delay of six months on the part of the Petitioner shows their indifference towards the Court proceedings, because the case was in part heard stage. PW1 was examined in chief and was to be cross-examined by the Defendants and at that stage, they were absent.

The Court expects the parties to be vigilant and sensitive on the proceedings of the Court and when the case was in the part heard stage, it is the duty of the parties to follow the conduct of the case and contact their Advocate also to know about the stage of the case. But, the Defendants have failed to follow the proceedings because of their lethargic attitude. It is well settled principle that the length of the delay is not material, but whether the delay has been sufficiently explained has to be looked into.

Considering the facts and circumstances of this case, this Court is of the view that the delay remains unexplained and the Petitioner is to be non-suited for the relief prayed for. There is no valid ground made out to interfere with the order passed by the Court below, which deserves to be confirmed. Accordingly, the impugned order of the Court below is confirmed.

In the result. the Civil Revision Petition is dismissed. Consequently, connected Miscellaneous Petition is closed. No costs.