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2008 DIGILAW 2857 (MAD)

S. Vasantha & Others v. P. Packrisamy

2008-08-06

S.PALANIVELU

body2008
Judgment :- The petitioners before this Court are plaintiffs in O.S.No. 86 of 2005 on the file of the District Munsif, Tiruvarur. The respondent is defendant in the said suit. 2. On account of non-filing of written statement by the respondent on 19. 2005 he was called in the Court and was set ex-parte. He filed an application along with petition to condone the delay of 111 days under Section 5 of the Limitation Act. In the affidavit he has alleged that since he was suffering from jaundice during the relevant period, he could not contact his advocate and after recovery from the illness he came to know from his advocate about the stage of the case and then he filed the application. 3. In the counter, the above said allegations are denied and it is prayed that the petition to be dismissed. 4. Learned District Munsif, Tiruvarur, after considering the circumstances found that the delay has to be condoned on payment of cost of Rs.2,000/- by the petitioners. Aggrieved against the said order the present petitioners are before this Court. 5. The backbone contention of the respondent is that since he was suffering from jaundice he was unable to meet his lawyer and hence he had no knowledge about the passing of ex-parte decree against him. It is his first and foremost duty to adduce evidence to the satisfaction of the Court for condoning the delay. He is expected to explain the delay that it is due to reasonable cause and that he was prevented by circumstances which in view of the Court should be convincing. But in this case the respondent had not come forward to examine himself before the trial Court to explain the delay which was caused by his alleged ailments. In this context it is not at all possible for the Court to take the allegations in the affidavit to be true and grant relief. 6. Pertinent it is to state that in the affidavit he has not even mentioned about the method of treatment. Whether it is by native doctor or by a qualified doctor and no documentary proof of evidence is forthcoming. It is also to be borne in mind that the affidavit is silent about the period of his recuperating from illness and the date of contacting his advocate. Whether it is by native doctor or by a qualified doctor and no documentary proof of evidence is forthcoming. It is also to be borne in mind that the affidavit is silent about the period of his recuperating from illness and the date of contacting his advocate. In short the affidavit is bereft of particulars as regards to the explanation for the delay of 111 days. 7. Worthwhile it is to be mentioned that the learned District Munsif has not at all adverted to the cause adduced by the respondent for condonation of delay but concentrated on the presentation and representation of the application under Section 5 of the Limitation Act. It is true that the petition was presented on 2. 2006, which was returned only on 37. 2006. It was represented on 30.08.2006 after complying the defects. But the court office retained it without perusing and on 11. 2006 it was again returned by the court office. On 11. 2006 the petition was again represented which was taken on file on 111. 2006. If the returns of the Court are found to be irregular and against the guidelines issued from the High Court, it is for the Presiding Officer to initiate disciplinary action against the staff concerned. Those details will not take the role of explanation for the delay in filing the application. 8. Learned District Munsif has followed certain decisions of this Court for the purpose of condoning the delay. The principles laid down there on shall be followed only if the applicant comes forward with reasonable and convincing explanation for delay. If such obligation is not fulfilled by the applicant, the Court cannot decide the matter in issue appropriately. 9. After the ex-parte decree was passed, the petitioners herein filed E.P.No.3 of 2006 for delivery before the above said Court and got delivery Order in favour of the first petitioner on 211. 2006. The said delivery is to be recorded. Of course on the date of delivery of the property i.e., on 211. 2006, the petition filed under Section 5 of the Limitation Act had been taken on file as early as 111. 2006. This circumstance may not support the claim of the respondent. 10. In view of this Court, the delay of 111 days in filing the application to set aside of the ex-parte order remain unexplained. 2006, the petition filed under Section 5 of the Limitation Act had been taken on file as early as 111. 2006. This circumstance may not support the claim of the respondent. 10. In view of this Court, the delay of 111 days in filing the application to set aside of the ex-parte order remain unexplained. The order passed by the learned District Munsif can not be justified which deserves to be interfered with. There is no finding or observation with regard to the explanation of the delay and satisfaction of the court to Condone delay available in the order. Hence they have to be dislodged. The petition has to be allowed, setting aside the order passed in I.A.No.463 of 2006 in O.S.No.86 of 2005. 11. In fine, the petition is allowed and the Order passed by the learned District Munsif, Tiruvarur in I.A.No.463 of 2006 in O.S.No.86 of 2005 is set aside. Consequently, connected M.P. is closed.