P.A. Ramu vs T. Pitcha

Aruna Jagadeesan, J.—This Civil Revision Petition is filed by the defendant against the order passed by the II Additional Subordinate Judge, Tiruchirappalli in IA. No. 153/2007 in OS. No. 213/2005 dated 22.10.2007.

The respondent/plaintiff has filed the above said suit for specific performance, directing the petitioner/defendant to execute the sale deed in favour of the respondent, after receiving the balance sale consideration and in alternative, directing the defendant to pay the advance amount of Rs. 1,65,000/- with interest 12% p.a. The suit has been posted for filing the written statement of the defendant and the petitioner had entered appearance on 25.8.2005 and from the said date onwards, the petitioner had availed time upto 23.12.2005 for filing the written statement. Even after it was posted as a last chance for filing the written statement, the petitioner did not file the written statement and he was called absent on 23.12.2005 and set exparte. After a delay of 416 days, the petitioner has filed an application to set aside the exparte decree with a petition to condone the delay of 416 days. The court below has dismissed the petition by the order dated 22.10.2007, which is challenged in this Civil Revision Petition.

The submission of the petitioner for his non appearance on 23.12.2005 on which date he was set exparte and for not taking steps to set aside the exparte decree passed on 20.1.2006 till 13.3.2007, resulting in a delay of 416 days is that he was suffering from jaundice for 10 months from the I Week of December 2005 and further partition in his family was taking place in the end of 2006 and hence, he could not meet his counsel for giving instructions to file the written statement.

Even according to the petitioner, he was suffering from jaundice from the I Week of December 2005 for 10 months i.e. till 10th Month of 2006. The petitioner is said to have produced a medical certificate for the period from 10.12.2005 t 20.3.2007, which relates to the period beyond the period of illness. The court below in the impugned order has observed that the said document does not contain the date of issuance of the certificate. In the said circumstances, the genuineness and bona fide of the certificate is very much doubted for the aforesaid reasons. Even assuming that he was suffering from jaundice and partition had occurred in his family till the end of 2006, even thereafter he has not taken any steps to file the petition to set aside the exparte decree and only after receiving the notice in the execution proceedings, he has filed the application to set aside the exparte decree with a delay of 416 days.

There is much force in the contention of the learned Counsel for the respondent that the petitioner has bent upon delaying the suit proceedings filed by the respondent for specific performance, who has parted with a major amount towards the sale consideration and there is lack of bona fide on the part of the petitioner and the court cannot show any leniency when the petitioner has not come to the court with clean hands.

This Court in the case of Rathinathammal v. Muthusamy and Ors. 2004 3 MLJ 36 had refused to condone the delay, when the party aggrieved was not diligent enough in pursuing the matter and approached the court only during the execution proceedings. Similarly, when there was no proper explanation to condone the delay, this Court had refused to exercise its discretion in the decision rendered in the case of S. Vasantha and 4 Ors. v. P. Packrisamy 2008 3 TLNJ 470 Civil.

The learned Counsel for the petitioner has submitted that leniency should be shown in the present case, considering the illness suffered by the petitioner and drew the attention of this Court to the decisions of this Court rendered in the cases of Adhikesavan Vs. Kalavathi, and Thangavel v. Subash 2008 1 TNLCJ 740 Mad.

The facts and circumstances of the decisions relied on by the learned Counsel for the petitioner are different and distinguishable from that of the present case, as there was no lack of bona fide in those cases though there was some negligent on the part of the aggrieved party. In fact, the court below has stated in the impugned order that even after the petitioner was called absent and set exparte on 23.12.2005, there had been few more occasions for him to avail the opportunity to set aside the exparte order, as the case was adjourned to various dates and only on 20.1.2006, the exparte decree was passed. Hence, it is clear that there was a deliberate inaction on the part of the petitioner and in the said view of the matter, he does not deserve any leniency. The impugned order is well justified and I do not find any illegality or infirmity in the impugned order of the court below.

In the result, this Civil Revision Petition is dismissed. No costs. Consequently, the connected MPs are closed.