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Judgment
S. Palanivelu, J.—The petitioner is the defendant in O.S.No.645 of 1992 on the file of the Principal Sub Court, Chengalpet. This is a suit for
specific performance filed by the respondent. He was set ex parte on 10.03.1994 and he filed an application in I.A.No.1998 of 1995 to condone
the delay of 484 days in filing the application under Order 9 Rule 13CPC. In the above said application, he has alleged that he is suffering from
mental depression and was undergoing medical treatment and hence could not met his counsel for filing the written statement.
Even after filing of the application in I.A.No.1998 of 1995, again he suffered from the same illness, namely mental disorder and hence he was
unable to pursue the matter. It appeared to him that the above said application was allowed on condition that cost of Rs. 1,000/- should be paid
by him, however the application faced dismissal on account of non-payment of cost. After recovery, he approached his present counsel and
ascertained the position. He was informed that the respondent filed E.P. and obtained sale deed though Court registered in his favour. No notice
was served on him in the E.P. and he never engaged any advocate except Mr. P.B. Sukumar. He never gave any change of vakalat from P.B.
Sukumar to any other counsel. In the E.P. the counsel endorsed no instruction and the Court passed orders to execute and register the sale deed in
favour of the respondent. If no instruction was reported by the counsel, notice should have been sent to the party. The respondent may file E.P. to
take possession of the suit property which would cause much hardship and injustice to the petitioner. He has got good case to defend the suit.
Hence, delay of 839 days in filing the application to restore I.A.No.1998 of 1995 may be allowed.
In the counter filed by the respondents, it is stated that the petition is not maintainable. The petitioner contested the suit and was set ex parte on
10.03.1994. He also contested the E.P. through his counsel and remained ex parte and hence the Court passed orders for execution of the sale
deed in favour of this respondent. The petitioner had been watching the entire proceedings and now at this belated stage came forward with this
application. The petitioner has not preferred revision against the order passed by this Court. Hence, the petition may be dismissed. The reasons
stated in the affidavit are all false, imaginary and invented story for the purpose of filing this petition.
The learned Principal Subordinate Judge, Chengalpet after hearing both sides dismissed the application by observing that the ailments in the
affidavit have not been established before the Court. The contention in the affidavit for the delay in filing the application for restoration under Order
9 Rule 13CPC is that the petitioner was suffering from mental disorder and hence he could not pursue the matter.
In order to show that he suffered from mental illness, he has not produced any materials. In the proof of affidavit for his cross-examination, he
has mentioned the identical averments as available in the affidavit. In the cross-examination, he would say that from 1984 onwards, he was
suffering from mental disorder; that for about ten (10) years, he had been taking medical treatment from Dr. L. Ravishankar, that he took treatment
from two or three Doctors, that about seven or eight years back, he was inpatient in Dr. L. Ravishankar''s clinic, that in Ex.R.1 it is stated that from
1994 onwards he took treatment.
6.A certificate dated 31.07.2005 has been produced, issued by Dr.Ravishankar, a Consultant Psychiatrist in Chennai. It is certified by him that the
petitioner was treated by his for obsessive compulsive disorder with cyclothimia - depressive features ++ since 1994; and that he has been regular
in attending OP treatment and was admitted as inpatient for three to four months in his clinic during February 2003 and that according to the
history given by him, he has been mentally ill depressed for more than twenty years and continues treatment now too as outpatient.
At the first place, the Doctor who issued the certificate has not been examined before the Court and the petitioner has not taken any steps to
prove the certificate as well as the prescriptions issued by him. He did not even examine himself. It is stated that the petitions for condoning the
delay may be considered liberally but it must be shown by the petitioner that he diligently pursued the matter, but beyond his control the ex parte
decree or any other order was passed against him. He should have been prevented from sufficient cause from taking steps within the time
prescribed by the statute. If no such explanation is forthcoming, no question of condoning the delay would arise.
As far as the facts of the present case are concerned, it is the contention of the respondent that the petitioner should have preferred revision
from the order passed by the Court dismissing the application for non-payment of cost. It is settled position that the Court has got power to extend
time for payment of costs even after the expiry of the period stipulated by the Court but if the delay is inordinate, which is remaining unexplained,
when there had been no request by the party then the Court cannot condone the delay.
The learned counsel for the petitioner placed reliance upon a Full Bench decision of Calcutta High Court reported in AIR 1988 Calcutta 358
[Nurnahar Bewa v. Rabindra Nath Dev and others] in which it is held that the limitation for filing an application under Order 9for setting aside the
order of dismissal of an application made under Order 9is three (3) years under Article 137of the Limitation Act. However, it is observed that
when the time prescribed for setting aside ex parte decree under Order 9 Rule 13CPC is 30 days, it is quite inequitable to allow the period to take
time for three years to file an application to restore the application which was filed under Order 9which was dismissed for default. The relevant
portion of the judgment goes thus :
However, the High Court observed that when the period of limitation for making an application under 0.9 for setting aside an ex parte decree is
only thirty days from the date of the impugned order, it is highly inequitable to allow a party to avail a long period of three years under Art. 137 of
the Limitation Act to make an application under 0.9 for setting aside the order of dismissal of an application made under 0.9 for setting aside ex
parte decree. A party in whose favour an ex parte decree has been made cannot but suffer serious prejudice if the fate of the ex parte decree is
allowed to hang indefinitely for three years by allowing the other party to make an application for setting aside the order dismissing the application
for setting aside ex parte decree at any time within three years. Therefore, Art. 122of the Limitation Act requires a suitable amendment so as to
bring the application for setting aside the order of dismissal of the application made under 0.9 for setting aside ex parte decree within the scope and
ambit of Art. 122.
The Full Bench has also opined that Article 122of Limitation Act has to be suitably amended. Even though it is stated that the time for making
an application to restore the petition which was dismissed for default is three years, still the petitioner shall satisfy the Court that he was prevented
from sufficient cause in filing the application in time. In other words, in the absence of explanation for the delay caused in filing the application to
restore the application which was dismissed for default, the Court cannot grant relief to the party. In this case, the learned Principal Subordinate
Judge has thoroughly dealt with the factual situation and reached a conclusion that the petitioner has to be non-suited for the relief prayed for.
There is no valid ground made out to interfere with the orders challenged before this Court and the same is confirmed. This revision petition is
devoid of merits. In fine, the Civil Revision Petition is dismissed. No costs. Consequently, the connected Miscellaneous Petition is closed.