Selvaraj and Saradhamba vs Ramachandran, Chitra and Anjalai

A.C. Arumugaperumal Adityan, J.—The order passed in I.A. No. 3186 of 2004 in O.S. No. 34 of 1994 on the file of the Principal District

Munsif Court, Virudhachalam, is under challenge before this Court.

The said IA was filed by the 3rd Defendant in O.S. No. 34/2006 u/s 5 Limitation Act, to condone the delay in preferring an application to set

aside the exparte preliminary Decree. Admittedly there was a delay of 1654 days in filing the said IA. The reason for the delay, according to the

3rd Defendant, is that he was suffering from jaundice and he was treated by a native doctor and that is the reason why he could not file the petition

to set aside the exparte Decree in time. The said application has been vehemently opposed by the plaintiff in his counter. After hearing both the

parties, the learned Principal District Munsif, Virudhachalam, has allowed the application imposing a cost of Rs. 500/- to the 3rd Defendant. Since

the plaintiff has not prepared to receive the cost, the same has been deposited before the Court. Aggrieved by the order of the learned Principal

District Munsif, Virudhachalam, passed in I.A. No. 3186/2004 in O.S. No. 34/2005, this revision petition has been filed by the plaintiff.

The learned Counsel for the revision petitioner would contend that the 3rd Defendant in his petition viz. I.A. No. 3186/2004 has not given any

particulars as to when he was affected by jaundice, the duration of his treatment for the said disease and under whom he was treated etc. The

learned Counsel for the revision petitioner relying on the decision reported in Gomathi Ammal Vs. Madhusoodanan Nair and Another, , contended

that in a case of similar nature, it has been held by this Court that the vague allegations of illness and mere production of medical certificate are not

sufficient to condone the delay and party should get into the witness box to speak about the case as evidenced by medical certificate and each and

every day''s delay is to be properly explained by the defendant. The exact observation in the above said ratio-decidenti is as follows:

In a similar circumstances, Srinivasan, J, (as he then was) in a Judgment reported in Sri Pillaiyarpatti Karpaga Vinayagar Koil Nagarathar Trust Vs.

R.M. Sevagan Chettiar, held in the following manner:

It has been repeatedly held by this Court that exparte decrees cannot be set aside on vague allegations that the Defendant is ill. It is for the

Defendant to prove that he was so ill on the particular day that he could not attend Court. Until then, it could not be said that there was sufficient

cause for his non-appearance. Without proving the sufficient cause to the satisfaction of the court, no person can claim to have the exparte Decree

set aside. In this connection, the ruling of this Court in Selvakumar Rice and Oil Mills Vs. Tamil Nadu Electricity Board and Another, can be

looked into. The learned Chief Justice has laid down the proposition that exparte decrees cannot be set aside on vague allegations of illness.

In our case also, except the production of medical certificate, the petitioner herein has not explained the delay by examining herself. A reading of

Order 9 Rule 3 of CPC, clearly shows that the applicant must satisfy the Court that the summonses were not duly served or she was prevented by

any sufficient cause from appearing when the suit was called on for hearing. In this case, as already stated, there is no averment that summons was

not served on her. Failure to adduce evidence for non-appearance, the vague allegation that she was ill and mere production of medical certificate

are not sufficient to prove her illness unless the party gets into the box and speaks about the same.

The case on hand is still worse on facts because in this case not even the medical certificate was produced to show that the 3rd Defendant was

suffering from jaundice during the relevant period of time. Even though, the 3rd Defendant would say in his affidavit that he took treatment under

his native doctor, there is bereft of particulars like name of the doctor and duration of the treatment taken by the 3rd defendant etc. Each and every

day''s delay is to be explained by the 3rd Defendant. Particularly in this case, the delay is 1654 days. Under such circumstances, this Court is of

the view that the order passed by the Principal District Munsif, Virudhachalam, in I.A. No. 3186/2004 in O.S. No. 34/1994, is liable to be set

aside

In the result, the Civil Revision Petition is allowed and the order passed in I.A. No. 3186/2004 in O.S. No. 34/1994 on the file of the Principal

District Munsif Court, Virudhachalam, is hereby set aside. No costs. Consequently, connected CMPs are closed.