Palaniammal vs S. Mathivanan

K. Ravichandrabaabu, J.—This civil revision petition is filed by the fourth defendant in a suit for specific performance, aggrieved against an

order passed in I.A. No. 909 of 2010 whereby the Court below has rejected her application filed u/s 5 of the Limitation Act, seeking to condone

the delay of 2310 days in filing an application to set aside the ex parte decree passed on 26.4.2004. The respondent herein is the plaintiff in O.S.

No. 1753 of 2002 on the file of the Subordinate Court, Namakkal. He filed the said suit seeking a decree for specific performance of an

agreement of sale against the petitioner and three others. On 26.4.2004, an ex parte decree came to be passed by the Trial Court against the

defendants. The petitioner herein, as the fourth defendant, filed I.A. No. 909 of 2010 u/s 5 of the Limitation Act, seeking to condone the delay of

2310 days in filing an application to set aside the ex parte decree. The Court below rejected the said application by holding that the petitioner has

not shown sufficient cause for condoning such huge delay. The aggrieved fourth defendant filed the present civil revision petition.

Heard the learned counsel on either side.

It is contended by the learned counsel for the petitioner that she had entrusted the matter to her son and daughter to conduct the proceedings on

her behalf also, as they are also parties to the suit and therefore, she was under the impression that she need not appear before court. Apart from

that, her husband also died on 12.2.2010 and therefore, she was not in a position to come out of the house. Thus, the delay had occurred in filing

the application to set aside the ex parte decree.

Per contra, the learned counsel for the respondent/decree holder submitted that the defendants 1 and 4 engaged the same advocate and the

other defendants, namely minor son and daughter engaged another advocate. When the ex parte decree was passed as against all the defendants

on 26.4.2004, the defendants 2 and 3 alone filed an application in I.A. No. 943 of 2009 seeking to condone the delay in filing the application to

set aside the ex parte decree. However, the application filed by the defendants 2 and 3 was dismissed by the Court below on 16.7.2010. As

against the order dated 16.7.2010, they preferred a civil revision petition in C.R.P.(NPD) No. 3169 of 2010 before this Court. The said civil

revision petition also came to be dismissed as withdrawn on 23.12.2010. So far as the present petitioner is concerned, it is submitted by him that

she has not shown sufficient cause before court for her non appearance on 26.4.2004 and therefore, the Court below has rightly rejected the

application.

Upon perusing the respective pleadings of the parties in I.A. No. 909 of 2010 and the order made therein and upon considering the submissions

made before this Court by the respective counsel, I am of the view that the petitioner has not made out a case for condoning the delay of 2310

days in filing the application to set aside the ex parte decree. The affidavit filed in support of the application, if perused, would show that she is

admitting the receipt of suit summons from the court. However, she would submit that she had entrusted the matter to her son and daughter for

conducting the proceedings on her behalf also.

Though she has stated so in the affidavit, she has not examined her son or daughter before court. On the other hand, she only examined herself

as PW1. Therefore, in the absence of other independent witness to support such pleadings, the self-serving evidence of PW1 cannot be taken into

consideration. Moreover, when the suit itself came to be decreed as early as on 26.4.2004, the affidavit filed in support of the application does not

disclose any cogent and convincing reasons for filing the application with a delay of 2310 days. On the other hand, she would say that her husband

died on 12.2.2010 and she could not come out of the house due to that reason. When the decree came to be passed on 26.4.2004, the death of

her husband in the year 2010 cannot be stated to be a reason for her non appearance on 26.4.2004. Therefore, the petitioner has not given any

reason, much less justifiable one for condoning such enormous delay. Apart from the said fact, the other two defendants also filed a similar

application and got it dismissed by the Court below. They also withdrew the civil revision petition challenging the said order of dismissal. Thus, it is

manifestly clear that there is no bona fide in the contention of the petitioner. The Court below has rightly exercised its discretion in refusing to

condone the delay of such enormous delay of 2310 days. I find no irregularity or infirmity in the impugned order. Therefore, the civil revision

petition is dismissed. No costs. Consequently, the above MP is also dismissed.