Renganathan and Sundari vs Kannusamy

S. Palanivelu, J.—The petitioners are defendants in O.S. No. 243 of 2004, on the file of the District Munsif Court, Manapparai. The respondent filed the suit for recovery of money of Rs. 77,595/- on the strength of a Promissory Note. On account of the non-filing of the written statement, both of them were set exparte on 01.10.2004. In the affidavit, they have stated that on 08.10.2004, they filed an application to set aside the exparte decree, which was assigned S.R.No.343. However, the petition was not taken by the Court on file and hence they did not know about the result of the matter. Further on 01.10.2004, the first petitioner, an Army man not in headquarters, was recalled by his superior Officers for duty and hence he was away to his headquarters and his wife alone is in the house, who also fell ill and hence she was unable to pursue the matter, resulting in non-filing of the written statement, hence an exparte decree was passed against the first petitioner. It is further submitted that even though an application was filed within the time, it could not be traced out in the Advocate''s Office which got mingled with other case bundles. So, a delay of 943 days in filing the petition to set aside the exparte decree has been caused and the court may condone the delay.

The petition was resisted by the plaintiff in his counter by denying the allegations in the affidavit. Inspite of granting sufficient opportunities to these defendants, they did not utilise the opportunity and failed to file a written statement in time. There is no sufficient cause shown by the petitioners for condoning the delay of 943 days and hence the delay cannot be condoned.

The learned District Munsif, Manapparai dismissed the application, by stating that the delay has not been explained to the satisfaction of the court and that even though they were afforded with ample opportunities to file their written statement on various hearings, they have miserably failed to file the same.

The learned Counsel for the petitioners Mr. J. Anandkumar would submit that the first petitioner had gone to Army on the mandate of his superior authorities and his wife, second petitioner herein being an illiterate, who was not doing well and was unable to follow up the court proceedings and hence the delay has been caused.

The learned Counsel for the respondent Mr. K.R. Rengasami would submit that even the oral evidence of both the petitioners do not explain the delay of 943 days and in fact the second petitioner has stated before the court that she does not know about the contents of the affidavit and she is not the signatory to the affidavit. This Court has gone into the pleadings of both parties as well as considered submissions made on both sides.

In the considered view of this Court, the delay of 943 days has been satisfactorily explained for the reason that the first petitioner was away to his headquaters during the relevant period and at that time the second petitioner who is his wife, is in her native place and she being an illiterate, could not advert to the court proceedings, however, the other side has to be compensated for the delay caused and also for his inconvenience. This Court is also of the opinion that the Civil Revision Petition shall be allowed, imposing costs upon the petitioners, for the delay caused by them.

In fine, the Civil Revision Petition is allowed on condition that the petitioners shall pay a sum of Rs. 5,000/- as costs to the respondent''s Counsel on record before this Court, on or before 20.01.2009, failing which, the Civil Revision Petition shall stand automatically dismissed, without reference to this Court. Consequently, connected Miscellaneous Petition is closed. No costs.