P. Padmavathi vs M. Mahendran

M. Duraiswamy, J.—Challenging the fair and Final Order passed in I.A. No.300/2014 in O.S. No.674/2003 on the file of I Additional Sub-Court, Coimbatore, the Defendant filed the above Civil Revision Petition. The Plaintiff filed a Suit in O.S. No. 674/2003 for Specific Performance.

Before the Trial Court, the Defendant appeared through her Counsel and was contesting the case. Subsequently, she remained absent and an ex parte Decree was passed on 8.1.2008. Thereafter, the Defendant filed an Application in I.A. No. 300/2014 to condone the delay of 2348 days in filing the Petition to set aside the ex parte Decree.

In the Affidavit, filed in support of the Petition, the Defendant has stated that she came to know about the passing of ex parte Decree in the Suit only on 11.6.2014 when she received the Notice, sent by the Respondent''s Counsel, demanding possession of the property. Further, in Paragraph 3 of the Affidavit, filed in support of the Petition, the Defendant has stated that his previous Counsel did not intimate the ex parte Decree and in spite of repeated requests and demands, she could not get proper reply from her Counsel and she came to know about the ex parte Decree only after receiving the said Notice sent by the Respondent''s Counsel.

The Defendant, having appeared before the Trial Court and filed the Written Statement, should have been diligent in prosecuting the matter in a proper manner. She cannot wait for nearly seven years for filing an Application to set aside the ex parte Decree. Except stating that her Counsel did not inform her about passing of ex parte Decree, she has not given any acceptable reason for condoning the inordinate delay of 2348 days.

The Hon''ble Supreme Court in the judgment reported in H. Dohil Constructions Co. Pvt. Ltd. v. Nahar Exports Limited and another, 2015 (5) CTC 534 (SC) : 2015 (1) SCC 680, while declining to condone the delay in representing the papers, observed that a party cannot blame his Counsel for not representing the papers in time even without mentioning the name of the Counsel in the Affidavit. Further, the Hon''ble Supreme Court held that unless the party, seeking for condonation of delay, gives sufficient cause for condoning the delay, the delay could not be condoned. The ratio laid down in the Judgment reported in H. Dohil Constructions Co. Pvt. Ltd. v. Nahar Exports Limited & another, 2015 (5) CTC 534 (SC) : 2015 (1) SCC 680, squarely applies to the facts and circumstances of the present case.

In the case on hand the Petitioner/Defendant has not given sufficient cause for condoning the inordinate delay of 2438 days.

The Trial Court, taking into consideration of all aspects, rightly dismissed the Application.

The learned Counsel appearing for the Petitioner relied upon an unreported Judgment of this Court dated 7.4.2015 made in C.R.P. No. 2497/12 and 262/2013, wherein, this Court held that the Judgment should be in accordance with Section 2(9) of Civil Procedure Code.

The ratio laid down in the Judgment is not applicable to the present case for the reason that the Revision has been filed as against the Order declining to condone the delay of 2338 days in filing the Petition to set aside the ex parte Decree.

Following the ratio laid down by the Hon''ble Supreme Court reported in H. Dohil Constructions Co. Pvt. Ltd. v. Nahar Exports Limited & another, 2015 (5) CTC 534 (SC) : 2015 (I) SCC 680. I am of the view that the Trial Court had rightly dismissed the Application. I do not find any error or irregularity in the Order passed by the Trial Court. Hence the Civil Revision Petition is liable to be dismissed as devoid of merits and accordingly, the same is dismissed. No costs. Consequently, connected CMP is closed.