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2009 DIGILAW 786 (MAD)

S. Palanisami Gounder v. K. Balasubramaniam

2009-03-24

A.C.ARUMUGAPERUMAL ADITYAN

body2009
Judgment This revision has been directed against the order passed in I.A.No.1675 of 2008 in O.S.No.179 of 2007 on the file of the learned Principal District Judge, Coimbatore. The said application was filed under Section 5 of the Limitation Act to condone the delay of 174 days in filing the petition to set aside the exparte decree dated 10. 2007. 2. According to the revision petitioner, since he was suffering from Jaundice for about nine months and was very sick due to his advanced age of 70, he could not move out of his house and could not also come to Coimbatore and to meet his counsel to file his written statement which resulted in an exparte decree against him. The respondent/plaintiff has filed a counter denying the averments in the affidavit filed by the revision petitioner/defendant. After going through the rival contentions of the parties, the learned trial Judge has come to a conclusion that the reasoning stated in the affidavit to condone the delay of 174 days is not reasonable, had dismissed the same. Aggrieved by the findings of the learned trial Judge, the defendant had preferred this revision. 3. The learned counsel appearing for the respondent would rely on a decision reported in Sundar Gnanaolivu rep by its Power of Attorney Agent Rukmini -vs- Rajendran Gnanavolivu rep by its Power of Attorney Agent Veina Gnanavolivu ((2003 –1- L.W.585) would contend that since the applicant has not come to the Court with clean hands and averments in the affidavit are not bonafide, the revision petitioner is not entitled to the relief asked for in the revision. The facts of the ratio relied on by the learned counsel for the respondent therein are that there was a delay of 431 days in preferring an appeal. The trial Court had dismissed the petition with costs which necessitated the petitioner therein to approach this Court. Holding that the averments in the affidavit to the petition to condone the delay are not bonafide, this Court had dismissed the petition. According to the petitioner, the power agent of the defendant was ill and was hospitalised on 11. 1999 and was discharged only on 312. 1999. Thereafter she was advised to take bed rest at her native place at Vellore where she was staying for more than a year from 1. 2000 for the purpose of consulting the local doctor. According to the petitioner, the power agent of the defendant was ill and was hospitalised on 11. 1999 and was discharged only on 312. 1999. Thereafter she was advised to take bed rest at her native place at Vellore where she was staying for more than a year from 1. 2000 for the purpose of consulting the local doctor. But there was no reasoning given in the affidavit to the petition why after her discharge from the hospital on 312. 1999, she tried to contact her advocate for getting a copy of the decree and Judgment. Only under such circumstances, it was held by this Court that the delay of 431 days in preferring the first appeal cannot be condoned, since there was no acceptable reasoning given in the affidavit to the petition for condoning the same. 4. But in the affidavit in the present case, the defendant/revision petitioner would state that due to his advanced age of 70, he could not move out of his house since he was suffering from Jaundice for nearly nine months and that is why he could not meet his counsel and gave instructions for preparing his written statement. 5. The learned counsel for the respondent would state that the plaintiff is also aged 75. Under such circumstances, I am of the view that it is a fit case in which an opportunity must be given to the revision petitioner to vent his grievance by way of filing of his written statement. 6. In fine, this civil revision petition is allowed and the order passed in the condone delay application in I.A.No.1675 of 2008 in O.S.No.179 of 2007 as well as the exparte decree passed against the defendant in O.S.No.179 of 2007 by the Principal District Judge, Coimbatore are set aside but on payment of cost of Rs.3,000/- (Rupees Three thousand) only by the petitioner to the other side within three weeks from today failing which this civil revision shall deem to have been dismissed. On compliance, the learned trial Judge/Principal District Judge, Coimbatore, after restoring the suit to his file shall dispose of the same in accordance with law within a period of three months from the date of compliance. Consequently, connected M.P.No.1 of 2009 is closed.