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2002 DIGILAW 616 (MAD)

Marimuthu v. Sivagnanam

2002-07-15

M.KARPAGAVINAYAGAM

body2002
Judgment :- Petitioner is the defendant in the suit. The suit was decreed ex parte. The petitioner filed an application to set aside the ex parte decree. Since there was a delay, he filed an application to condone the delay of 242 days in filing the petition to set aside the ex parte decree. The same was dismissed on the ground that the delay has not been properly explained. Hence, this Civil Revision Petition. 2. I heard learned counsel appearing for the petitioner as well as the respondent. 3. The respondent filed a suit in the year 1998 for specific performance of an agreement of sale. Though the petitioner engaged an advocate, he did not file the written statement in time. Ultimately, the suit was decreed ex parte on 09.11.1999. 4. On 08.08.2000, the petitioner filed an application to set aside the ex parte decree along with the application to condone the delay of 242 days stating that the petitioner was suffering from abdomen ulcer and therefore he was taking Siddha and Ayurvedic treatment and as such he could not give instructions to his counsel to file the written statement. Since the evidence has not been adduced to prove his plea, the Trial Court chose to dismiss the said application. 5. Learned counsel appearing for the petitioner, on the strength of the decision rendered by a Division Bench of this Court in SUBRAMANIAM v. TAMIL NADU HOUSING BOARD ( (2000) 3 M.L.J. 181 ), submits that the Courts should show liberal approach in the matter of condoning the delay since the length of delay is not a matter, but acceptable reason is the only criteria. 6. In arguing contra, learned counsel appearing for the respondent, on the strength of the decisions in GOMATHI AMMAL v. MADHUSOODANAN NAIR ( 1997(I) C.T.C. 651 ) and MUTHUSAMY v. INDIAN OVERSEAS BANK, ALANGULAM THROUGH ITS BRANCH MANAGER ( 1998(I) C.T.C. 348 ) would contend that when there is no acceptable explanation for the delay through the materials placed before the Court and the petitioner has not shown bona fide in explaining the delay, the discretionary power of the Court need not be exercised in favour of the petitioner. 7. I have carefully considered the rival contentions urged by the learned counsel appearing on either side. 8. 7. I have carefully considered the rival contentions urged by the learned counsel appearing on either side. 8. The delay of 242 days in setting aside the ex parte decree cannot be said to be a lengthy delay. But however, in my view, the petitioner has not come with clean hands before the Court while seeking to condone the delay of 242 days. 9. There is no dispute in the fact that before filing the suit, the plaintiff/respondent issued a notice on 16.04.98 to the petitioner Marimuthu. But he did not choose to reply. After the suit was filed on 11.06.98, though the matter was posted for filing the written statement by giving opportunity to the defendant, he did not choose to file the written statement. Ultimately, the suit was decreed ex parte on 09.11.99. 10. Thereafter, the plaintiff filed an Execution Petition in E.P. No.4 of 2000 and the notice was served on the defendant on 20.04.2000. In pursuance of the said notice, the petitioner appeared before the Court on 22.04.2000. 11. After four months, he chose to file a petition to set aside the ex parte decree i.e. on 08.08.2000 before the Lower Court along with the application to condone the delay of 242 days in filing the petition to set aside the ex parte decree stating that he came to know about the ex parte decree only at that time. 12. This is clearly an incorrect statement, in view of the fact that he knew about the ex parte decree passed on 09.11.99 as early as 22.04.2000 when he appeared before the Executing Court. So, when the petitioner approached the Court with lack of bona fide, this Court would not render any help to him by condoning the delay. 13. Therefore, I do not find any merit in the revision petition and accordingly the same is dismissed. Consequently the connected C.M.P. is also dismissed. No costs.