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Judgment
Swamikkannu, J.—The only point that arises for consideration in this civil revision Petition is whether the lower Court had indulged in
illegality irregularity or wrong exercise of jurisdiction in refusing to excuse the delay of 319 days in filing an application for setting aside the expert
decree that had been passed by the lower Court on 12th March 1979 on which date the case was posted for evidence. It is relevant in this
connection to note that the first hearing of the suit Original Suit No. 4628 of 1978 came before the learned Ninth Assistant Judge. City Civil Court
on 9th August, 1978 and for filing written statement it was finally posted to 12th March, 1979 on which date the Defendant was set expert
because the Defendant did not appear and no written statement was also filed. Under the circumstances an application had been filed to set aside
the expert decree for excusing the delay of 319 days.
It is relevant in this connection to note that Execution Petition No. 2160 of 1979 was filed by the decree holder in the suit on 30th, August 1979
for a sum of Rs. 14,000. It is common ground that a sum of Rs. 1,000 had been paid by the Defendant revision Petitioner herein subsequent to the
expert decree in this case to the decree holder. Civil Miscellaneous Petition No. 4973 of 1981 was filed in this civil revision Petition wherein an
Order was passed by Ratnam J., on 15th October 1981 directing the revision Petitioner herein to deposit Rs. 4,000 and the said Order had also
been complied with by the judgment-debtor, revision Petitioner herein. It is under these circumstances that this civil revision Petitioner has come to
this Court for final hearing.
The learned Counsel for the revision Petitioner apart from the document in this case which has been inducted in by way of me evidence, has also
taken through the ratio decidendi embedded in Kshetramani Dasi v. Surendra Mohan AIR 1955 (SIC) 553, Rangamma v. Honanna AIR 1955
Mys 64 and Kunnathvelli Viswanathan by next friend and brother Kunhikrishnan Nair alias Krishnadas Vs. Kunnambarapoyil Kanaran and
Others, . On the other hand, the learned Counsel for the decree-holder submits that it is on a promissory note executed by the revision Petitioner
herein, the Respondent instituted the suit and that sufficient opportunity had been given for filing a written statement and that in the suit, no written
statement was filed inspite of several opportunities had been given and thereafter on the final date for filing a written statement, the lower Court had
declared the Defendant absent and ser expert and thereafter, the suit was posted for evidence on 12th March, 1979 on which date the evidence
was recorded and the judgment was also pronounced. The learned Counsel for the Respondent further submits that the inordinate delay in coming
forward with an application to set aside the expert decree that to after Execution Petition No. 2160 of 1979 was filed, was not at all in accordance
with law and that the said delay cannot be considered as one which can be the subject matter of judicial scrutiny and even if it is subjected so, the
said delay cannot be excused because, it does not satisfy any of the tests that have been laid down by the Supreme Court as well as the other High
Courts. The point for consideration in this civil revision Petition is whether the lower Court had committed any error by refusing to set aside the
expert decree that had been passed, by (SIC) the delay? In other words, by dismissing the Petition u/s 5 of the Limitation Act as well as under
Order IX, Rule 13, Code of Civil Procedure, had the lower Court committed any illegality, irregularity or wrong exercise of jurisdiction?
Even at the outset, it has to be observed that it is common ground that the delay is not 287 days as mentioned in the Petition but 319 days that
had actually occurred in this case, in filing the application to set aside the expert decree passed on 12th March 1979.
In this regard, the main allegation that is given by the judgment-debtor for himself having committed default in not having filed the Petition to set
aside the expert decree within time was only due to the fact that he had subjected himself to the influence of an advocate who had been struck off
the rolls and the character of the said advocate had led him to a slate of morbid inaction. The said inaction has been, according to him got itself
aggravated, especially when he was occupying a responsible and respectable post of the Gazette Officer as a Professor in a Government College.
He was further alleged in the affidavit in paragraph 4 that the advocate cheated him of a sum of Rs. 45,000 taken from him in the shape of cash
and jewels for purchase of a property which he never purchased. It is further stated in paragraph 5 of the affidavit sworn to by the revision
Petitioner herein in support of the Petition to set aside the expert decree by condining the delay, that he came to know about the expert decree in
and by a letter sent by the learned Counsel for the Respondents in this Petition on 19th January 1980 informing that the had taken out an execution
Petition for attachment and sale of his immovable property.
On a careful consideration of all the aspects that are exhibiting themselves in this case, this Court is of the view that in the interest of justice, the
Defendant-revision Petitioner herein ought to have been given an opportunity by the lower Court by condoning the delay because the reason that
had been offered by the Respondent here in before the lower Court and sworn to by him as cause for the delay, cannot be said to be without any
substance As a matter of fact, it is not the technical approach as required. in a matter of this nature where the relationship of a client and the
advocate itself became the basis for the delay. The relationship between a client and his advocate is something divine. When that divinity in the
relationship of itself got struck off and became immobile because of the advocate indulging himself in certain alleged activities which led to himself
being struck off the rolls, it is needles. to say that when such aspect has been brought out by means of a specific reason in the affidavit sworn to by
the revision Petitioner herein, the same has to be given all weight that can be given to it under the circumstances. Therefore this Court is of the
opinion that the lower Court ought to have sufficiently applied its mind before rejecting the reasons that had been offered for the delay in filing the
application for setting aside the expert decree and the delay has to be condoned and is hereby condoned. The Order under revision is revisable
due to the non application of the sufficient reasons and discretion that had been vested with the lower Court which has not exercised its discretion
in giving cut its Order under revision. Therefore, the Order under revision is full of infirmities which is revisable because of the infirmities mentioned
above, and therefore, it is hereby revised and the civil revision Petition is allowed. No costs.
The lower Court is directed to take the suit on file and dispose it of after giving an opportunity to the Defendant to file a written statement and
the lower Court is also directed to dispose of the suit within a month from the date of receipt of the records from this Court.