S. Veerappasounder vs K. Kuppusamy

K. Kalyanasundaram, J.—This Revision Petition is filed challenging the Order passed in I.A. No.299 of 2009 in O.S. No.851 of 2002 by the Sub-Court, Tiruhengode.

The Respondent had instituted a Suit in O.S. No.233 of 2001 before the Sub-Court, Sankari, against the Petitioners for Specific Performance The Suit was subsequently transferred to Sub-Court, Namakkal and on 7.4.2004 an ex-parte Decree was passed against the Petitioners. The Respondent filed Execution Petition in E.P. No. 55 of 2007 for execution of the Sale Deed The Petitioners received notice in the Execution Petition on 6.6.2007 and on 10.6.2007 they filed an Application in I.A. No.299 of 2009 to condone the delay of 1061 days in filing the Application to set aside the ex-parte Decree.

In the Affidavit tiled in support of the condone delay Petition, the Petitioners have stated that when the Suit was pending before the Sub-Court Sankari, they appeared through their Advocate, one Mr. P. Shanmugam, and he advised the Petitioners to meet him after four months to file their Written Statement When they met the Advocate in March 2002, he informed that the case will be transferred to Sub-Court, Namakkal and after receiving notice from the Sub-Court, Namakkal they can contact him. It is further stated that periodically the Petitioners had been contacting his Counsel, ultimately on 6.6.2007 they received a notice in R.A.P. No.55 of 2007 and only thereafter, they knew about the ex-parte Decree passed on 14.6.2004, The Petitioners have further contended that immediately they filed the Application on 10.6.2007.

Resisting the Applications, the Respondent has filed detailed Counter disputing the allegations made by the Petitioners and contended that the huge delay was not properly explained by the Petitioners The learned Sub-Judge, Tiruhengode, dismissed the Application. Aggrieved by the Order, the present Revision is filed.

Heard Mr. N. Manokaran, learned Counsel for the Petitioners and Mr. P. Valliappan, learned (counsel for the Respondent and peiused the records.

The learned Counsel for the Petitioners submitted that the Trial Court has adopted too technical approach in considering the Delay Application, that the Petitioners have explained the delay and therefore they should be given opportunity to contest the case.

Per contra, the learned Counsel for the Respondent vehemently contended that the delay is enormous and it was not sufficiently and properly explained by the Petitioners.

It is not in dispute that the Respondent had instituted the Suit before the Sub-Court, Sankari, for Specific Performance. The Petitioners have also received Summons in the Suit and engaged Mr. P. Shanmugam to defend their case. It is seen from the records that the Suit was later transferred to Sub-Court, Namakkal on administrative reasons, but the Petitioners have not received Notice from the transferee Court. It is an admitted fact that due to non-filing of the Written Statement and non-appearance of the Petitioners, the Suit was decreed ex-parte against them on 7.4.2004. The Petitioners had received Notice in the Execution proceedings on 6.6.2007 and with in a period of four days, they tiled the Application to condone the delay.

It is seen from the records that the Respondent has contended in the Plaint that the Petitioners have entered into an Agreement for Sale of the Suit property to an extent of 1.28 acres for Sale consideration of lakh and paid Rs.60,000/- towards advance on the date of the Agreement. It is the contention of the Petitioners that at the time of marriage of the daughter of the Second Respondent, lie borrowed money from one K.P. Murugesan and as a security, the Agreement of Sale was entered into and they did not have any intention to sell the property to the Plaintiff.

It is settled law that in a Suit filed in respect of right involved in immovable property, the parties should be given opportunity to contest their case and in case for any delay, the Court has to take liberal approach unless the delay is deliberate and with an oblique motive. The Petitioners have stated that they did not receive Notice from the transferee Court and they were not aware of the ex-parte Decree passed against them The Respondent has not produced any material to show that the delay was deliberate and it was with intention to prolong the litigation.

In the above facts situation, this Court, is of the opinion that the Petitioners have shown sufficient cause for condoning the delay. Hence, the delay is condoned on payment of cost of Rs.50,000/-. The Petitioners shall take a Demand Draft in the name of the Respondent and handed over the same to the Counsel for the Respondent within four weeks from today. Accordingly, the Civil Revision Petition is allowed. Consequently, connected Miscellaneous Petition is closed. No costs.

On compliance of the condition, the Trial Court shall dispose of the Suit on merits as expeditiously as possible, preferably within a period of three months from the date of receipt of a copy of this order.