Rajammal vs Rajagopal and Others

S. Manikumar, J.—Being aggrieved by the dismissal of an application in I.A. No. 530 of 2010 in O.S. No. 46 of 2005 on the file of the

District Munsif, Tirupur, refusing to condone the delay of 733 days in filing an application to set aside an ex parte decree, passed on 28.4.2006,

the revision petition has been filed. The revision petitioner is the second defendant in the suit.. Her husband, N. Mariappan. is the third defendant in

the suit. The suit has been filed, by the first respondent, Rajagopal, for a declaration of title to the suit property and for a further direction to the

second defendant, Ms. Rajammal, to hand over possession of the property to the plaintiff, failing which to enable the plaintiff to take possession

through the process of Court. The plaintiff has also sought for a direction to the defendants 2 and 3, to pay damages of Rs. 7,200/-, for use and

occupation of the suit property for three years, till the date of suit, with future interest at 12% p.a. and also for a direction to the abovesaid

defendants to pay future damages at Rs. 200/- p.m., from the date of plaint, till the date of delivery of possession of the suit property.

Material on record discloses that the suit was posted for filing the written statement on 28.4.2006. Written statement was not filed by the

defendants. Hence, the suit came to be decreed ex parte on 28.4.2006. Contending inter alia that the revision petitioner was affected by jaundice,

since 15.3.2006 and therefore, both the revision petitioner and her husband/third defendant in the suit, had gone to Kollam, State of Kerala, to get

treatment and on account of such illness, she had even lost her eyesight and only on 15.4.2008, she could recover from the illness and in the

abovesaid circumstances, she could not appear on 28.4.2006 and file her written statement and that her absence was due to the abovesaid bona

fide reasons, the revision petitioner has prayed to condone the delay of 733 days.

According to the revision petitioner, her husband being a lorry driver, was in Gujarat for sometime and in the abovesaid circumstances, both of

them could not contact their counsel and instruct him to file the written statement. It is her further contention that she came to know about the ex

parte decree only when she received notice in the execution petition in E.P. No. 15 of 2008. In the abovesaid circumstances, she has prayed to

condone the delay of 733 days in filing an application to set aside the ex parte decree.

Opposing the application, the plain-tiff/decree holder has submitted that the ailment and treatment, are not substantiated by any medical

evidence or by production of travel tickets, and that each days delay has not been explained. The decree holder has further submitted that the

application for condonation lacks bona fides and it has been filed only to protract the proceedings. It is also submitted that the said application has

been filed only after receipt of notice, in the execution petition. For the abovesaid reasons, the decree holder/first respondent, has prayed for

dismissal of the condoned delay petition.

Upon consideration of pleadings and submissions and placing reliance on the followings decisions in Gomathi Ammal Vs. Madhusoodanan Nair

and Another, P.R. Sundaravadanam and Others Vs. P.R. Vimala and Another, Muthusamy Vs. Indian Overseas Bank, , Kandaswamy and

Others Vs. Krishnamandiram Trust, Karur and Others, Reliance Industries Limited Vs. M. Rajkumari, , the Court below has found that there was

no bona fides on the part of the revision petitioner and that the reason assigned, was also not supported by any medical record. In fine, holding that

there was no sufficient cause shown for condonation, the Court below has dismissed the petition filed u/s 5 of the Limitation Act.

Assailing the correctness of the impugned order, Ms. V. Usha Rani, learned counsel for the revision petitioner submitted that the Court below

has failed to consider that the revision petitioner was taking ayurvedic treatment in the State of Kerala and therefore, there was no possibility of any

documentary proof for the kind of treatment taken by her. According to her, when the revision petitioner was affected with jaundice, and also lost

her eyesight to certain extent, due to the severity of the ailment, the Court below ought to have considered the bona fides of the revision petitioner,

instead of approaching the case, alleging slackness on the part of the revision petitioner/second defendant in the suit. Learned counsel for the

revision petitioner further submitted that vakalat on behalf of all the defendants, was entrusted to the same counsel. According to her, the revision

petitioner is a tenant under the temple and rent has been paid to the temple, periodically. She also submitted that when the rent control proceedings

for eviction was taken by the respondent herein, the same was defended on the ground that the respondent is not the landlord of the suit property

and that therefore, in the absence of establishing the jural relationship of landlord and tenant, the rent control proceedings instituted by the first

respondent claiming himself to be the landlord, was negatived and that R.C.O.P. No. 32 of 1996, has been dismissed. She also submitted that

thereafter, the respondent has preferred R.C.A. No. 16 of 1998, and that the same also came to be dismissed. In the light of the claim of the 1st

respondent, as the owner of the property, already negatived by the authorities, under the Rent Control Act, learned counsel for the revision

petitioner submitted that an opportunity ought to have been given by the Court below to the revision petitioner to contest the suit on merits. She

also submitted that the revision petitioner, has been residing in the suit property for several years and for the mistake committed, in not filing the

written statement, she should not be deprived of her opportunity to defend the suit on merits, subject to even payment of cost.

Opposing the relief sought for in the revision petition, Mr. S.K. Rakhunathan, learned counsel for the first respondent submitted that the Court

below, on proper appreciation of facts and circumstances, and after considering the principles of law to be taken note of, while considering an

application to condone the delay in filing the application to set aside an ex parte decree, has passed a reasoned order, and that when the Court

below has categorically found that there was no bona fide and lack of evidence to substantiate the cause shown for the absence and the delay in

taking effective steps to set aside the ex parte decree, a well considered order does not require interference. In this context, learned counsel for the

respondent took this Court through the impugned order. For the above said reasons, he prayed for dismissal of the revision.

Heard the learned counsel for the parties and perused the material available on record.

The revision petitioner is the second defendant in the suit. The third respondent in the present petition is the husband of the revision petitioner.

The second defendant, is the Executive Officer of Arulmigu Visweswara and Arulmigu Veeraraghava Perumal Temples, Tirupur. In the suit, all the

three defendants have engaged the same counsel. For filing the written statement, the suit was posted to 28.4.2006. Written statement has not

been filed by the defendants. It is the case of the revision petitioner/second defendant that she was suffering from jaundice from 15.3.2006 till

15.4.2008 and that she was confined to bed for the entire period and therefore, she could not instruct the learned counsel appearing for her, to file

the written statement. It is also her further contention that her husband had gone to Gujarat and hence, he could not contact the counsel. According

to the revision petitioner/second defendant, she came to know about the ex parte decree only on receipt of notice in E.P. No. 15 of 2008 and

thus, there was a delay of 733 days, in filing application to condone the delay, to set aside the ex parte decree.

Perusal of the impugned order shows that defendants 1 and 3, both appeared before the Court through a counsel on 26.4.2005. Thereafter,

they were set ex parte on 30.11.2005, for non filing the written statement. At that time, the revision petitioner/second defendant was not served

with the suit summons and therefore a publication has been ordered. After publication, the revision petitioner/second defendant was set ex parte,

for non appearance on 6.4.2006. Thereafter, for not filing the written statement, the suit has been decreed on 28.4.2006. From the above, it could

be seen that when the husband of the revision petitioner the third defendant in the suit, had received summons from the same residence, and

entered appearance through a counsel on 26.4.2005, the revision petitioner/second defendant could not be served. Even as per the averments

made in the supporting affidavit for condonation, the revision petitioner was affected by jaundice, only from 15.3.2006, and not earlier, the suit

summons in respect of defendants 1 and 3 viz., the Executive Officer of Arulmigu Visweswara and Arulmigu Veeraraghava Perumal Temples,

Tirupur and Mr. Marimuthu @ Mariappan, husband of the revision petitioner, have been served as early as on 26.4.2005. Some of the decisions

relied on by the Court below, are extracted hereunder:

i) In Gomathi Ammal v. Madhusoodanan Nair and Another (supra), this Court has held as follows,

Condonation of delay in filling application to set aside ex parte decree-sufficient cause for condoning delay-Failure to adduce evidence for non-

appearance and seeking condonation of delay on vague allegation of illness and mere production of medical certificate are not sufficient to condone

the delay-Party should get into witness box to speak about case as evidenced by medical certificate-No sufficient cause is made out for condoning

delay.

ii) In P.R. Subdaravadanam and 2 Others v. P.R. Vimala and Another (supra), Muthusamy v. Indian Overseas Bank, alangulam, through its

Branch Manager (supra), this Court has held as follows,

Condonation of delay-Exercise of discretion-discretion under this Section has to be exercised judicially and not arbitrarily-one of the persons

approaching Court is a widow and as such she could not effectively take steps in time is not a sufficient cause for condoning delay-Order

condoning delay of 3,670 days set aside.

iii) In Muthusamy v. Indian Overseas Bank, Alangulam, through its Branch Manager (supra), this Court has held as follows:

Bona fide of petitioner-Discretionary power of Court-Exercise of-Trial Court set aside ex parte decree in 1993-Suit was posted for trial and

adjourned thrice to give opportunity to defendant-Defendant did not appear on all date of hearings-counsel made endorsement ""no instruction"" -

Defendant was made ex parte-Present application to set aside ex parte with condoning delay of 410 days was field-False statement as to date of

receipt of notice was given-Discretionary power of Court need not be exercised in favour of the petitioner since defendant did not act bona fide as

he did not appear on 3 hearing dates and was placed ex parte twice-Refusal of Court to condone delay is proper.

iv) In Kandaswamy and 4 Others v. Krishnamandiram Trust, Karur by its Trustees, T.N. Rajagopal Naidu and 33 others (supra), this Court has

held as follows:

Petition to condone delay of 797 days in filing petition to set aside ex parte decree filed on ground that petitioner did not have knowledge about ex

parte decree-Affidavit filed in support of petition did not contain any other reason-Petitioner examined himself as witness in said petition and in

deposition admitted that he knew about decree in 1994 itself and yet he could not file petition to set aside such decree in 1994 as he could into

mobilise other petitioners-Court would normally construe Section 5 liberally and condone delay unless gross negligence or deliberate inaction or

lack of bona fide is imputable to party seeking condonation of delay-Conduct of petitioner in keeping quite for over two years only on account of

inability to mobilise other petitioner evidences gross negligence, irresponsible inactive attitude of petitioner and petition lacked bona fides-Delay

cannot be condoned.

(v) In Reliance Industries Limited rep. by Reliance Consultancy Services Limited v. M. Rajkumari (supra), this Court has held as follows,

Ex parte decree passed in suit on 12.1.1998 - Application to set aside ex parte decree filed on 1.3.1999-Defendants admitted in affidavit that they

came to know about ex parte decree on 1.4.1998 when plaintiff communicated same-Plaintiff had corresponded with defendants legal unit on

4.11.1998 and on other dates-Defendants did not give any reason for not filing application between 1.4.1998 to 1.3.1999-Defendant failed to give

even plausible explanation for delay-Order of trial Court rejecting application to condone delay in filing petition to set aside ex parte decree

confirmed.

Material on record discloses that though the revision petitioner has inter alia contended that she was taking treatment in Kerala from 15.3.2006

to 15.4.2008, as observed by the Court below, no medical records have been produced to prove that she stayed at Kerala, for such a long period

or any record to prove treatment. The contention that for native treatment, no records could be produced, cannot be accepted, for the reason that,

as rightly observed by the Court below, not even a single scrap of paper has been produced before the lower Court.

Yet another aspect considered by the Court below is that when the petition to condone the delay of 733 days in filing the petition to set aside

the ex parte decree was filed, in the year 2008, the same has been returned for some reasons. Thereafter, the revision petitioner has filed I.A. No.

741 of 2009 for condonation of delay of 347 days in representing the returned petition. The said petition has been allowed. The suit is for

declaration and for recovery of possession. The revision petitioner/first defendant in the suit, has not adduced any evidence and her husband, the

third respondent in this revision petition/third defendant, who has entered appearance, also has not substantiated the cause shown, i.e., he was in

Gujarat. Husband of the petitioner, could have taken steps to file his written statement or steps to set aside the ex parte order passed against him,

as early as on 30.11.2005. Though the revision petitioner is stated to have filed a written statement along with the condone delay petition, the

Executive Officer of Arulmigu Visweswara and Arulmigu Veeraraghava Perumal Temples, Tirupur, has not filed any written statement, accepting

the landlord-tenant relationship between temple and the revision petitioner. As stated supra, the rent control proceedings did not find favour with

the first respondent, on the sole ground that there was a dispute as regards ownership. The dispute which was raised in the rent control

proceedings, was whether the temple is the owner of the property or the first respondent, in this revision petition. As rightly contended by the first

respondent that when the rent control proceeding instituted, for eviction, was dismissed, accepting the objections regarding the jural relationship of

the first respondent and the revision petitioner, naturally, the first respondent, would be driven to institute a suit for declaration and recovery of

possession, in respect of the suit schedule mentioned property by impleading, the Executive Officer of Arulmigu Visweswara and Arulmigu

Veeraraghava Perumal Temples. Even after receipt of the summons, the second defendant, the Executive Officer has remained absent and for not

filing the written statement, the suit has been decreed on 28.4.2006. the temple has not objected to the claim of the 1st respondent. If the property

belonged to the temple, the Executive Officer of Arulmighu Veeraraghava Perumal Temple, would have filed a written statement objecting to the

claim of the 1st petitioner regarding the ownership of the property by the 1st respondent.

From the material on record, it could be also seen that though the revision petitioner herein, has filed an application, to set aside the ex parte

decree, the temple has not come forward to prefer any application to set aside the decree of declaration. In the light of the discussions and

decisions stated supra, this Court is of the view that even though an ex parte decree has been passed in the year 2006, the revision petitioner, has

moved the application only in the year 2010, after four years from the date of decree. There is no bona fide and the reasons for condonation have

not been substantiated. The civil revision petition is dismissed. No costs. The connected miscellaneous petition is closed.