P. Kumaresan vs Rajammal

T.S. Sivagnanam, J.—This Civil Revision Petition filed u/s 115 of the CPC is directed against the fair and decreetal order dated 01.10.2009 in I.A.No.1244 of 2007 in O.S.No.225 of 2003, on the file of the Principal Sub-Court, Tiruppur.

The petitioner is the plaintiff in the suit and the respondent is the first defendant. The suit was filed for a decree of specific performance of the contract of sale, dated 02.08.1990. Due to the non-appearance of the first defendant/respondent, suit was decreed exparte on 29.02.1996. The respondent filed an application in I.A.No.1244 of 2003, to condone the delay of 4075 days in filing the petition to set aside the exparte decree. The reason assigned by the respondent is that after she received the suit summons, she had engaged an Advocate at Tiruppur to appear on her behalf, who is said to have taken time from the Court for filing written statement and that he would inform the respondent about the hearing date to enable him to file written statement. However, no intimation was received from the Advocate and in the mean time, the husband of the respondent, who was aged about 70 years, suffered a paralytic stroke and the respondent had to take him for treatment and was permanently staying in Palakkadu. Subsequently, the respondent''s husband passed away on 01.02.2006. The respondent further stated that she came to know that the suit was decreed exparte only on 22.07.2007, after receipt of the notice in E.P.No. 64 of 2007 and on enquiry, she found that the counsel engaged by her died about ten years back. Further, the respondent stated that she has never entered into an agreement with the plaintiff and has not seen him and the alleged agreement is a forged document and she has a valid defence in the suit. With the above reasons, the respondent sought for condonation of delay of 4075 days in filing the petition to set aside the exparte decree.

The petitioner opposed the prayer made by the respondent by filing a counter inter alia contending that the averments made by the respondent are absolutely false and frivolous and that the agreement was valid and the total sale consideration of Rs. 77,000/- was fixed and the petitioner had paid Rs. 60,000/- as advance and the pre-suit notice was issued on 02.11.1992, which was received by the respondent and she sent a reply notice on 06.11.1992 containing false and vexatious allegation, after which the petitioner had filed the suit on 12.04.1993. It was further contended that the suit was adjourned to 26.07.1993 for service of summons on the respondent and the second defendant, which was duly served. On 26.07.1993, the respondent appeared through her counsel and on the same date, the second defendant also appeared through counsel and the case was adjourned to 01.10.1993 to file written statement by both the defendants. On 01.10.1993, again the case was adjourned to 03.12.1993, as the defendants failed to file written statement further time was granted. Again on 03.12.1993, the time for filing written statement was extended till 15.04.1993 and thereafter, the case was adjourned to 19.08.1994 and again the time for filing written statement was extended till 25.11.1994. Further time was extended till 03.03.1995. It was further stated that subsequently the Court extended the time to file written statement and posted the matter to 22.07.1995 and further extended to 01.09.1995 and since written statement was not filed, the case was adjourned to 15.12.1995 and thereafter, once again adjourned to 16.02.1996. However, inspite of all these opportunities granted to the respondent to file written statement, she failed to avail the same and therefore, the Court passed an exparte decree on 29.02.1996.

Further, it was stated that the respondent filed counter statement in I.A.No.550 of 1993, on 01.10.1993, that she failed to file written statement in the suit. It was further stated that pursuant to the exparte decree, the petitioner deposited the balance sale consideration into Court on 06.03.1996 and thereafter, filed execution petition in E.P.No.64 of 2007 and notice was served on the respondent in the Execution Petition on 22.07.2007 for the hearing date on 25.07.2007. The respondent appeared before the Executing Court and was granted time to file counter and the matter was posted on 29.08.2007. Even thereafter, the respondent did not file the petition to set aside the exparte decree immediately and the same came to be filed only much thereafter.

On the merits of the matter, the petitioner contended that in the reply notice dated 06.11.1992, the respondent had admitted the suit sale consideration and therefore, averments raised by the respondent that the agreement is a forged document is absolutely false. Further, it was contended that though the Executing Court granted two years and seven months time to the respondent to file written statement, she failed to file the same and the inordinate delay of seven years and six months in filing the petition to set aside the exparte decree is absolutely without bonafides and hence liable to be dismissed.

The respondent examined herself as PW-1 and one Marikani was examined as PW-2. On the side of the petitioner, there was no oral evidence, but five documents were marked as Exhibits R1 to Exhibits R5 namely, the reply notice sent by the respondent; the counter filed by the respondent in I.A.No.550 of 1993; vakalat filed by the counsel for the respondent; vakalat filed by the counsel for the respondent in E.P.No.64 of 2007; and vakalat filed by another counsel in E.P.No.64 of 2007. The Court below by the impugned order allowed the application on the ground that the counsel engaged by the respondent in the suit had passed away and the respondent was permanently staying in Kerala State attending to her husband, who was taking native treatment having suffered a paralytic stroke. Further, the Court observed that the counsel engaged by the respondent in the suit died on 22.07.2007 and therefore, the respondent was not aware of the exparte decree. The Court below further observed that the reason assigned by the respondent in the affidavit seeking condonation of delay appears to be acceptable and true and accordingly, ordered for condonation of delay subject to payment of cost of Rs. 1500/-. Challenging the said order, the petitioner/plaintiff has filed this present Civil Revision Petition.

Heard the learned counsels appearing on either side and perused the materials available on record.

The short question which falls for consideration is as to whether the delay of 4075 days in filing the petition to set aside the exparte decree should have been condoned by the trial Court and whether the reason assigned by the Court to exercise discretion in favour of the respondent is legally justified and valid.

It cannot be disputed that the delay is inordinate as it is more than 11 years and three months. The respondent assigned two reasons while seeking for condonation of delay, firstly by stating that the counsel engaged by her in the suit had passed away. Secondly, that she was attending to her husband by permanently staying in Kerala State, as he had suffered a paralytic stroke.

It is no doubt true that if the counsel had passed away, information might not have been given to the client. Though the respondent has not stated the date on which the counsel had passed away in the affidavit filed in I.A.No.1244 of 2007, the Court has recorded in the impugned order that the counsel passed away on 22.07.2007. The dates on which the suit was adjourned for filing the written statement has been set out in the preceding paragraph.

It is to be noted that the suit was decreed exparte on 29.02.1996 and after more than ten years after the date on which the decree was passed, the counsel had passed away. Therefore, this could hardly be stated to be a reason for not pursuing the matter. There is a duty cast upon the client to contact his or her counsel and diligently prosecute the matter. It is seen that the suit was adjourned for nearly 2 years for filing written statement, the respondent did not avail the opportunity. Curiously enough in the interregnum, she had filed a counter to the Interlocutory Application in I.A.No.550 of 1993 on 27.09.1993. Therefore, nothing prevented the respondent from filing the written statement inspite of sufficient time having been granted by the trial Court.

As regards the respondent''s husband sickness, though under normal circumstances, it would have been a sufficient cause, from the dates, which have been referred supra namely, the dates on which the suit came to be adjourned continuously for nearly 2= years for filing written statement and the fact that the respondent was able to file counter affidavit in I.A.No.550 of 1993 on 27.09.1993 i.e., when the suit was being adjourned from time to time for filing written statement, the respondent''s husband sickness could not have been treated as a sufficient cause for condonation of the inordinate delay of more than 11 years. The petitioner/plaintiff had marked five documents before the trial Court, though the trial Court has referred to the five documents in the order, there is no discussion as to why the contents of those documents should not be taken into consideration to prove that the conduct of the respondent, that she had not diligently prosecuted the matter and that the reason assigned lacks bonafide.

Furthermore, it is stated that in the reply notice, the respondent admitted the sale for agreement and in the affidavit filed seeking condonation of delay, the respondent pleads that it is a forged document. This inconsistency also assumes significance, while examining the conduct of the respondent and the respondent has engaged two counsels in the execution petition. Even after notice in the Execution Petition, immediately, the respondent has not filed application for setting aside the exparte decree.

Thus, by considering the entire facts and the various dates of which, the suit was adjourned and the conduct of the respondent, this Court is of the view that the Court below erroneously exercised discretion in favour of the respondent

Considering the facts, this Court holds that the respondent has failed to show sufficient cause for condoning the inordinate delay of more than 11 years and the conduct of the respondent clearly shows that she did not diligently prosecute the matter and the plea raised lacked bonafide and in such circumstances, the question of exercising discretion in favour of such person does not arise. Accordingly, the Civil Revision Petition is allowed and the impugned order is set aside. No costs. Consequently, connected miscellaneous petition is closed.