Vajjiravelu Asari (Died) and others v. Arulmighu Sri Arunachaleswarar Devasthanam, by its Executive Officer, Tiruvannamalai
2001-02-21
A.RAMAMURTHI
body2001
DigiLaw.ai
Judgment : The defendant in O.S.No.684 of 1983 on the file of Additional District Munsif Court, Thiruvannamalai preferred this revision, aggrieved against the orders passed in I.A.No.1224 of 1995 dated 27.6.1997. After the filing of this revision petitions, he died and petitioners 2 to 10 were impleaded as legal heirs. 2. Thecase in brief is as follows: The respondent/plaintiff filed a suit against the first petitioner and the suit was decreed ex parte on 27.4.1969. The first petitioner filed an application underO.9, Rule 13 of Civil Procedure Code to set aside the ex parte decree and also filed an application under Sec.5 of the Limitation Act to condone the delay of 2062 days. On 27.4.1989 the first petitioner came to the court and he was suffering from ulcer as well as stomach pain and as he was short of hearing, when he was called he could not be present and as such, the ex parte decree was passed. He gave instructions to the clerk of the counsel to file a petition. Later, the first petitioner received the execution notice and he gave instructions to the counsel to file counter. The respondent also took possession of the property through court on 27.2.1995. He again contacted the counsel and he was advised to compromise with the respondent. He contacted the respondent and although they promised to give the place, they failed to comply the same. The rent upto 1990 has been paid to the respondent and unless the delay is condoned he would be put to much loss and hardship. 3. Therespondent resisted the application and stated that there is inordinate delay in filing the application and the reasons mentioned in the affidavit are false. There is no valid and justifiable cause to condone the delay and on 27.2.1995, possession was also taken by the respondent and it was also rented out to third parties and now they are in enjoyment of the same. 4. On the side of the petitioner, the first petitioner was examined as P.W-1 and the doctor was examined as P.W-2 and after hearing the parties, the court below dismissed the application and aggrieved against this, the present revision petition has been filed. 5. Heard the learned counsel of both sides. 6. The point that arises for consideration is whether the order passed by the Court below is proper and correct. 7.
5. Heard the learned counsel of both sides. 6. The point that arises for consideration is whether the order passed by the Court below is proper and correct. 7. Point: It is not in dispute that in the suit filed by the respondent, the ex parte decree was passed on 27.4.1989. Learned counsel for the petitioners contended that the first petitioner was not keeping well and although he was present on the said date, he could not appear before the court due to short of hearing and he had instructed the clerk of the counsel to file necessary application. Later, the first petitioner also received the execution notice and be gave instructions to the course to file counter. However, on 27.2.1989 admittedly the respondent had taken possession of the property and now it is let out to third party and the third party is in possession and enjoyment of the case. 8. Learned counsel for the petitioners mainly contended that there is evidence of P.Ws-1 and 2 and the same has not been contradicted with any evidence on the side of the respondent. The doctor had also stated that he was giving treatment to P.W-1. However, they have not filed any record to show that P.W-1 was admitted as inpatient for all those days and, as such, he was not in position to contact the counsel. The evidence of P.W-2 only indicates that he had advised to take rest for some days and this does not mean that more than 2000 days P.W-1 can keep quite and to reach the court leisurely on the ground that there is valid and justifiable cause to condone the delay. Number of opportunities were given to P.W-1 and it is apparently clear that he had deliberately kept quiet without proceeding further. After the ex parte decree was passed, execution proceedings was also filed and the notice was also served and delivery of possession was also taken on 27.2.1989 and thereafter only, P.W-1 has filed this application, thereby indicating that the application lacks in bona fide and there is no substance. The trial court was justified in dismissing the application and considering the inordinate delay of 2062 days, I am of the view that the petitioner has miserably failed to convince the Court and as such, the order passed by the Court below is proper and correct and no interference is called for. 9.
The trial court was justified in dismissing the application and considering the inordinate delay of 2062 days, I am of the view that the petitioner has miserably failed to convince the Court and as such, the order passed by the Court below is proper and correct and no interference is called for. 9. For the reasons stated above, the revision petition fails and is dismissed.