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Judgment
K. Ravichandrabaabu, J.—This civil revision petition is filed by the plaintiff in O.S. No. 674 of 2004 on the file of the I Additional District
Munsif, Virudhachalam. He is aggrieved against an order passed u/s 5 of the Limitation Act in condoning the delay of 1329 days in filing petition to
set aside the ex parte decree. The respondents herein as the defendants filed the said application in I.A. No. 47/2012. The court below allowed
the application and thus, the present civil revision petition is filed by the petitioner/plaintiff. Heard the learned counsel appearing for the petitioner
and the learned Government Advocate appearing for the respondents.
The petitioner filed the said suit seeking for declaration of his easementary right and also for mandatory injunction for removal of the wall put up
in the suit property. In the said suit, an ex parte decree came to be passed on 11.03.2008. Consequently, the petitioner filed an execution petition
in E.P. No. 130 of 2010 seeking to execute the said ex parte decree. In the said E.P., notice was served on the defendants on 27.07.2010. The
defendants entered their appearance in the execution proceedings. But, they have not filed any counter. On 29.10.2010, an ex parte order came to
be passed by the Executing Court. The defendants filed an application to set aside the ex parte order and the same was allowed on 15.03.2011.
Thereafter, the E.P. was ordered, after contest on 30.01.2012. On the same day, the defendants filed I.A. No. 47/2012 seeking to condone the
delay of 1329 days in filing the petition to set aside the ex parte decree passed on 11.03.2008. An affidavit was filed in support of the said
application wherein it is stated that they were not informed about the ex parte decree by their previous Government Advocate and they came to
know about such ex parte decree only later at the time of filing the said application and based on the advise of the present Government Pleader,
they filed the said application u/s 5 of the Limitation Act. The court below accepted the said contention and allowed the application subject to
payment of cost of Rs. 2,500/- to the petitioner herein.
Going by the facts and circumstances of the case as well as the dates and events which are not in dispute, I find that the order passed by the
court below in condoning the delay of 1329 days is not just and proper and not based on any sufficient cause shown by the defendants.
The ex parte decree came to be passed on 11.03.2008. It is not the case of the defendants that they were not served with any suit summons
and on the other hand, they entered appearance and it is stated that they have also cross-examined in the plaintiff''s witnesses. Thus, knowledge of
filing of the suit and its pendency was very much available to the defendants. When an ex parte decree came to be passed on 11.03.2008 and an
execution petition was filed in the year 2010 wherein they have received a notice on 27.07.2010, the defendants have not taken any steps
immediately to file set aside petition on the other hand, they had only entered appearance in the execution petition and not filed any counter.
Thereafter, the execution petition itself came to be disposed of after nearly two years on 30.01.2012, that too, after contest. Even during these two
years period, the defendants have not taken any steps to file a petition to set aside the ex parte decree. On the other hand, on the date of disposal
of E.P., they woke up and filed the petition u/s 5 of the Limitation Act seeking to condone the delay of 1329 days by claiming as if they were not
aware of the decree till it was informed by the present Government Pleader. I wonder as to how such contention of the defendants was accepted
by the court below to condone the delay.
In fact, the court has found at paragraph No. 7 of its order that the defendants were served with notice in the execution petition on 27.02.2010
itself. It has also observed that the defendants have to follow up the proceedings and they cannot blame their previous counsel. Whatever may be
the contention of the defendants, the fact remains that they received the notice in the execution petition as early as on 27.07.2010. Thus, even
assuming that they were not aware of the ex parte decree prior to the said date of service of notice in the E.P., atleast they cannot escape by
saying that they were not aware of such ex parte decree even after receipt of the notice from the Execution court. Thus, they have full knowledge
of the ex parte decree atleast from 27.07.2010 onwards. Admittedly, they have not taken any steps for nearly two years. Only after the E.P. was
ordered on merits, they filed the present application. The court below failed to consider this aspect and allowed the application only on the reason
that the defendants should be given an opportunity to contest the matter on merits.
In my considered view, giving an opportunity to contest the matter cannot be a criteria for considering an application u/s 5 of the Limitation Act.
Such consideration arises only when the petitioner who files a petition u/s 5 of the Limitation Act, satisfies the court with sufficient cause and
reasons for non appearance on the particular date. If the reasons stated are not true or found to be false, then the question of considering or
granting of sufficient opportunity does not arise. May be the defendants are representing the Government. That itself will not give them any
immunity from the scope of the Limitation Act. In fact, in a recent decision rendered by the Hon''ble Supreme Court in Amlendu Kumar Bera and
Others Vs. The State of West Bengal, it has been held that merely because the respondent is the State, delay in filing the appeal or revision cannot
and shall not be mechanically considered and in the absence of ""sufficient cause"", delay shall not be condoned. In another decision of the Apex
Court reported in Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai, , it has been held as follows:
In cases involving the State and its agencies/instrumentalities, the court can take note of the fact that sufficient time is taken in the decision-
making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and/or its
agencies/instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea
that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest.
Thus, by considering all facts and circumstances, I am of the view that the order passed by the court below in condoning the delay is totally
erroneous. No doubt, the power vested on the court is discretionary power still, such discretion has to be exercised judicially by applying mind to
the facts and circumstances of the case as well as the reasons stated for such delay. If such consideration is totally absent, then this Court can
interfere with the said order. Accordingly, I find that the order of the court below is liable to be set aside and accordingly, the same is set aside.
The civil revision petition is allowed. No costs.