Alagumalai vs Kannammal

S. Palanivelu, J.—1. The petitioner is the first defendant in O.S. No. 940 of 1995 on the file of the District Munsif cum Judicial Magistrate Court, Vedasandur. The respondent filed the suit for partition. In the affidavit, the petitioner has affirmed that he appeared in the case through his Lawyer and the case was pending. In the mean while, due to the failure of monsoon and drought in his native place, he left his native place and went to Kerala to eke out his livelihood. He was residing in Kunnamkulam in Kerala doing coolie work. At that time, his son fell down from a tree and was admitted to the hospital and that since he was concentrating on that affair, he could not take care of the case. Further, he believed that his brother and sister, who were also defendants in the said suit would look after the case. It is alleged that the plaintiff has included the property separately purchased by this petitioner.

1.2. It is further submitted by the petitioner that when he was taking steps to construct the building in the suit property, the plaintiff prevented him and informed him that he obtained a Court decree against him. When the petitioner contacted his Advocate and enquired him about the case, he replied that on account of non-filing of the written statement on 20.12.1996, the suit was decreed ex parte. He would further submit that he has got a good case in the suit and the non-filing of the written statement was neither wilful nor wanton. Hence, the delay of 2997 days occurred in filing the application to set aside the ex parte decree may be condoned.

In the counter filed by the respondent herein, she has alleged that the reasons found in the affidavit are false. She obtained final decree, filed execution petition and took delivery of the properties also alloted to her and she is now in possession. Since the defendants had no case, they did not file any written statement denying her rights. It is false to allege that the petitioner had been in Kerala for five years. He was very much available in his native village by name P. Kosavapatty. Each and every delay should be explained for allowing the petition. The delay has not been satisfactorily explained before this Court and hence, this petition has to be dismissed.

The learned District Munsif and Judicial Magistrate after hearing both parties dismissed the petition. Hence, this petitioner is before this Court.

While the petitioner was cross-examined before the Court, he deposed that from 27.03.2003 till 31.03.2003, he was in the hospital in Kerala and that he used to come to his native place for Panchayat elections and Parliamentary elections to cast his vote. The other defendants remained ex parte in the suit. Had the petitioner been careful and diligent enough with regard to the Court proceedings, he should have enquired either his Lawyer or his siblings about the Court proceedings. He was careless enough to follow up his case and now says that he was living in Kerala for about ten years. In view of this Court, the reasons contained in the affidavit are not convincing and satisfactory.

The learned Counsel for the petitioner placed much reliance upon a decision of the Hon'ble Supreme Court reported in 2008 (7) MLJ 1149, Rabindra Singh v. Financial Commissioner Corporation, wherein Their Lordships have held that if the defendants could not appear before the Court on account of non-service of notice, what ever may be the length of delay, it has to be necessarily condoned.

In the case dealt with in the judgment, the defendants was residing in Houston, Texas, in the United States of America for more than 25 years and he had never been served with any notice, although the respondent.4 had full knowledge of his correct address. Their Lordships were also of the view that no substituted service could have been effected, while the defendant is in America. Their Lordships have also referred to earlier decisions of the Court and finally concluded that when no mala fide is found on the part of the applicant, the delay could be condoned.

Adverting to the facts and circumstances of the case, they are distinguishable. The petitioner had appeared through his Lawyer and since he did not file his written statement, he was set ex parte. It is also on record that he used to come to his native village to cast his vote in the parliamentary elections and for Panchayat elections as well.

From the afore-said circumstances, it is discernible that then and there he had been visiting his native village and on thos occasions, he might have contacted his Advocate and enquired about the Court proceedings, but he failed to do so.

The learned Counsel for the petitioner also garners support from a decision of the Supreme Court reported in G.P. Srivastava Vs. Shri R.K.

Raizada and Others, ., in which Their Lordships have pointed out that as per the terminology in Order 9, Rule 13 CPC, when the party was prevented by any sufficient cause from appearing, it should be considered liberally to do complete justice between parties when no negligence or inaction is attributable to erring party and he shall not be penalised for his earlier commission of error and if the petition is filed to set aside ex parte decree within the statutory period, it has to be viewed liberally.

The principles laid down in the present case stand in a different footing. The above-said case was decided under Order 9 Rule 13, while the present case on hand is u/s 5 of the Limitation Act with a towering delay of 2997 days.

In view of this Court, the inordinate delay remains unexplained and the reasons assigned by the petitioner are not adequate to satisfy the conscience of the Court. There is no error or infirmity in the order passed by the Court below, which deserves to be confirmed and accordingly, it is confirmed. The civil revision petition is devoid of merits.

In the result, the civil revision petition is dismissed. No costs.