Nagalakshmi vs Selvaraj

C.S. Karnan, J.—The revision Petitioner/Defendant has filed the above revision against the order dated 31.03.2011 passed in I.A. No. 436 of 2010 in O.S. No. 59 of 2008 on the file of the District Munsif, Usilampatti and the same is liable to be set aside.

The short facts of the case are as follows:

The Respondent/Plaintiff has filed a suit in O.S. No. 59 of 2008 against the revision Petitioner/Defendant before the District Munsif Court, Usilampatti for permanent injunction and other relief. The said suit was posted on 22.01.2009, for filing written statement. On that day, the Defendant had not appeared. Hence, the suit was set exparte.

Aggrieved by the set exparte decree passed in O.S. No. 59 of 2006 dated 22.01.2009, the revision Petitioner has filed set aside application along with condone delay petition. The same was opposed by the Respondent/Plaintiff. The learned Judge, after hearing the arguments of the learned Counsels on both sides, dismissed the set aside application stating that the delay of 525 days for filing the set aside application was not properly explained.

Aggrieved by the said dismissal order, the revision Petitioner has filed the above revision and has challenged the dismissal of the set aside application.

The learned Counsel for the revision Petitioner argued that the revision Petitioner has not produced the medical certificates and has not explained the delay of 525 days and due to this the learned Judge had dismissed the petition which is erroneous. The learned Judge ought to have given an opportunity to the revision Petitioner for disposing the main suit on merits since the injunction suit is triable.

In support of his arguments, the learned Counsel for the Petitioner cited a judgment in the case of Mohammed Aslam and Others Vs. C.N.A.

Gowdhaman, . The relevant portion of the said judgment reads as follows:

Letters Patent, Clause 15 "Judgment" Any order that vitally affects valuable rights of any party will be treated as judgment and appeal against such order is maintainable.

Letters Patent, Clause 15 "Judgment" Defendants filed application to condone delay of 1251 days in setting aside ex parte decree and same was allowed as stakes involved is very huge subject to payment of cost of Rs. 10,000/- to State's Legal Services Authority Affidavits filed by the Defendants in Execution Petition and other Applications filed by Plaintiff earlier showed that Defendants were aware of ex parte decree and subsequent developments and reasons set out in Affidavit filed for condoning delay were not proper and it did not constitute sufficient and bona fide cause Such Order affects vitally valuable rights of party and is judgment within meaning of Clause 15 Letters Patent and Appeal is maintainable.

Limitation Act, 1963, Section 5 "Length of delay is no matter and acceptability of explanation is only criterion" Sometimes delay of shortest range may be uncondonable for want of acceptable explanation and delay of very long range can be condoned if explanation is satisfactory In every case of delay there may be some lapse on part of litigant concerned and delay will be condoned if explanation does not smack mala fide and it is not put forth as part of dilatory strategy Phrase "Sufficient cause" should received liberal construction -Cost should be awarded to other party for hardship caused to him and payment to Legal Service Authority does not compensate other party Defendants have paid cost of Rs. 10,000/- to Legal Services Authority Order modified and Defendant directed to pay further sum of Rs. 20,000 to Appellants within prescribed period.

The learned Counsel for the Respondent/Plaintiff argued that the Defendant was served summon and he had also entered appearance to try the

suit. The Defendant is well aware that the above suit was posted for written statement of the Defendant on 22.01.2009. On that day, the Defendant did not appear. Hence, the learned Judge allowed the main suit. Thereafter, the Defendant has filed set aside application after a delay of 525 days, without assigning any valid reasons. The set aside application has been filed at a belated stage. Therefore, the learned Judge dismissed of the set aside application in fair and reasonable.

In view of the facts and circumstances of the case and arguments advanced by the learned Counsels on either side and on perusing the impugned order passed by the learned Judge, this Court is of the considered opinion that the suit can be disposed of on merits after recording evidence of both sides and after perusal of the records of the parties concerned. If the main case is disposed of on merits, the interest of the Respondent/Plaintiff will not be prejudiced. Further the judgment cited by the learned Counsel for the revision Petitioner is squarely applicable in the instant case. Therefore, the revision petition has to be allowed on condition that the revision Petitioner shall pay a sum of Rs. 5000/- to the Respondent/Plaintiff as costs. The costs shall be paid within a period of 15 days from the date of receipt of this order. After complying with the conditional order by the revision Petitioner, the learned Judge shall dispose of the suit in O.S. No. 59 of 2009 on merits, after giving opportunity to the parties, without being influenced by this Court's discussions. Accordingly ordered.

In the result, the above civil revision petition is disposed of with the above observations. Consequently, the order and decretal order passed in I.A. No. 436 of 2010 in O.S. No. 59 of 2008 dated 31.03.2011 on the file of the District Munsif Court, Usilampatti is set aside, and the suit is O.S. No. 59 of 2008 is restored. Accordingly ordered. There is no order as to costs.