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2007 DIGILAW 3549 (MAD)

C. Balu v. B. Selvarani & Another

2007-11-13

A.C.ARUMUGAPERUMAL ADITYAN

body2007
Judgment :- The revision has been filed against the order in I.A.No.99 of 2005 in O.S.No.48 of 2004 on the file of the Principal Subordinate Judge, Nagapattinam, by the revision petitioner, who is the defendant in O.S.No.48 of 2004, filed by his wife and daughter for maintenance. The suit was decreed in exparte on 2. 2005. The plaintiffs have filed EP.No.96 of 2005 for executing the decree. After receiving notice in EP, the revision petitioner had filed I.A.No.99 of 2005 in O.S.No.48 of 2004 under Section 5 of the Limitation Act to condone the delay of 228 days in filing the petition to set aside the exparte decree. 2. The learned Trial Judge has dismissed the application on the ground that there is no sufficient reasoning shown in the affidavit to the petition to condone the delay of 228 days. Aggrieved by the findings of the learned Trial Judge, this revision petition has been preferred. 3. Heard Mr. V.Balamurugan learned counsel appearing for the revision petitioner and Mr.Srinath Sridevan learned counsel appearing for the respondents and considered their respective submissions. 4. The reasoning assigned in the affidavit to the petition in I.A.No.99 of 2005 is that after receiving the suit summons the revision petitioner/defendant had approached his lawyer and gave instruction to file written statement and only after receipt of the notice in the execution petition, he came to know that his counsel has not filed the written statement, which ended in an exparte decree being passed in O.S.No.48 of 2004. Even in the affidavit he has not stated when he gave instruction to his counsel. Admittedly there is no complaint preferred against his counsel in the Bar Council touching his professional ethics. 5. The learned counsel for the revision petitioner relying on III (2007) BC 692 (Kulwant Singh Vs. Balhar Singh), contended that a party cannot be made to suffer for the negligence of his counsel. The facts of the said ratio decidendi is that a criminal complaint was preferred under Section 138 of the Negotiable Instruments Act by the complainant against the accused. The complainant fell sick on the date fixed for hearing and informed his counsel, who reached the Court not in time, which resulted in the dismissal of the complaint. Only under such circumstances, it has been held in the said dictum that party cannot be made to suffer for the negligence of his counsel. 6. The complainant fell sick on the date fixed for hearing and informed his counsel, who reached the Court not in time, which resulted in the dismissal of the complaint. Only under such circumstances, it has been held in the said dictum that party cannot be made to suffer for the negligence of his counsel. 6. The other case on which reliance was placed by the learned counsel for the revision petitioner is 2007(4) CTC 449 (Arun Alexander Lakshman Vs. A.P.Vedavalli). In the said case the delay of 714 days in filing application to set aside exparte decree was allowed on the ground that the delay has been satisfactorily explained. The relevant observation in the above said dictum runs as follows:- "It is settled law that "sufficient cause" must receive a liberal construction so as to advance substantial justice when no negligence, or inaction, or want of bona fide, is imputable to the applicant, the over-riding consideration being doing substantial justice. The Court should not lightly condone the delay in filing the Application to set aside the ex-parte Decree. Discretion is to be exercised like any other judicial discretion with vigilance and circumspection. The true test is whether the applicants have acted with due diligence." The facts of the case cited about is that after the receipt of notice on 21. 2005, the petitioner had filed search memo and had taken immediate steps and had made every endeavour to set aside the exparte decree passed against him. But in the case on hand, absolutely there was no diligence shown by the revision petitioner after giving instructions to his lawyer to file written statement. Absolutely there is no material on record to show that the revision petitioner had contacted his lawyer and gave instructions to him to file written statement in the suit. Only after the receipt of notice in the EP, the revision petitioner had filed I.A.No.99 of 2005 to condone the delay of 228 days in filing the petition to set aside the exparte decree. 7. The learned counsel for the revision petitioner would contend that with compensatory cost the petition may be allowed as held in 2007(4) CTC 449 (Arun Alexander Lakshman Vs. A.P.Vedavalli). I am of the considered view that both the cases cited by the learned counsel appearing for the revision petitioner will not be applicable to the present facts of the case. The learned counsel for the revision petitioner would contend that with compensatory cost the petition may be allowed as held in 2007(4) CTC 449 (Arun Alexander Lakshman Vs. A.P.Vedavalli). I am of the considered view that both the cases cited by the learned counsel appearing for the revision petitioner will not be applicable to the present facts of the case. The learned counsel for the revision petitioner would further state that the revision petitioner to show his bone-fide has filed a petition for restoration of conjugal rights. If it is so, he can very well pursue the said application to restore the peace and harmony between him and his family. I do not find any reason to interfere with the findings of the learned trial Judge in I.A.No.99 of 2005 in O.S.No.48 of 2004 on the file of the Principal Sub-Judge, Nagapattinam. 8. In the result, the revision is dismissed confirming the order in I.A.No.99 of 2005 in O.S.No.48 of 2004 on the file of the Principal Sub-Judge, Nagapattinam. Connected Miscellaneous Petition is also dismissed. No costs.