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2010 DIGILAW 5143 (MAD)

Habibur Rahman v. V. Elumalai

2010-11-24

V.PERIYA KARUPPIAH

body2010
Judgment :- 1. This revision has been filed by the petitioner against the dismissal order passed by the lower Court in I.A.No.221 of 2009 in O.S.No.187 of 2003, an application to condone the delay in filing an application to set aside the exparte decree. 2. Heard Mr.T.Dhanyakumar, learned counsel for the petitioner and Mr.N.Suresh, learned counsel for the respondent. 3. The learned counsel for the petitioner would submit in his argument that the petitioner was the defendant before the lower Court, and an exparte decree was passed against him on 11.04.2005, after he was set exparte, for his non-appearance on 05.04.2005. He would further submit that the non-appearance of the petitioner on 05.04.2005 and 11.04.2005, was only due to loss of the letter written by the counsel addressed to the petitioner in transit and he has got a very good case in the suit. He would also submit that he could not also meet his counsel, since he did not receive any letter from the counsel. Thereafter, when he happened to receive the notice in the E.P. Proceedings, he approached the counsel and was informed about the exparte decree and therefore, the delay caused in filing an application to set aside the exparte decree may be set aside. He would further submit that the lower Court has not promptly appreciated the mistake committed by the postal agency, but had penalised the petitioner by dismissing the said application. He would therefore, request this Court to give an opportunity to the petitioner to contest the case and he is ready to abide any conditions likely to be imposed against him in the suit. He would therefore, request this Court to interfere and set aside the order passed by the lower Court. 4. The learned counsel for the respondent would submit in his argument that the petitioner has suffered exparte decree already on two earlier occasions and this is the third time, the suit was decreed exparte and the reasons stated in the affidavit are also not sustainable. Moreover, he would further submit that the petitioner has not produced any affidavit of his counsel to show that he had written letters and posted them and in the allegation that he came to know about the exparte decree, only after receiving the execution notice. Moreover, he would further submit that the petitioner has not produced any affidavit of his counsel to show that he had written letters and posted them and in the allegation that he came to know about the exparte decree, only after receiving the execution notice. He would further submit that the said pleas cannot be sustained because an application under Section 5 of Limitation Act, was filed only on 30.04.2009, where as the E.P., notice was served upon the petitioner on 03.06.2008. He would also submit in his argument that each and every days delay has to be properly explained by the petitioner but he failed to do so and therefore, the lower Court was correct in rejecting the claim of the petition for condonation. He would also cite a judgment of this Court reported in 2009 (5) CTC 48 in between Shanmugam v. Chokkalingam, for the proposition of law that the condonation of delay cannot be ordered in a case where laches, negligence and inaction was imputable against the party, who is seeking for condonation. Therefore, there is no necessity for this Court to interfere with the order passed by the lower Court and hence, he would request the Court to dismiss the revision. 5. I have given anxious thoughts to the arguments advanced on either side. 6. The petitioner, who is the defendant in the suit before the lower Court suffered an exparte decree passed against him, for his non-appearance before the lower Court, on 05.04.2005 and 11.04.2005 and the reasons attributed by him that the letter written by his counsel did not reach him and therefore, the petitioner could not meet his counsel in time and it was possible only after receiving the E.P., notice and entered appearance in the execution proceedings. The said reasons attributing fault on the part of the postal agency cannot be rejected provided the affidavit of his counsel was also produced by the petitioner. However, it has been found that the application filed by the petitioner, for condoning the delay was only on 30.04.2009 despite E.P., notice was served upon the petitioner on 03.06.2008. The said delay caused was nearly for 10 months, and the said delay has not been explained by the petitioner. It has been strenuously argued that the petitioner has got a meritorious case for contesting the suit. The said delay caused was nearly for 10 months, and the said delay has not been explained by the petitioner. It has been strenuously argued that the petitioner has got a meritorious case for contesting the suit. But, no written statement has been filed, so far, by the petitioner, to establish his contentions. 7. The judgment of this Court reported in 2009(5) CTC 48 in between Shanmugam v. Chokkalingam, is squarely, applicable to the present case. The relevant passage would run as follows:- "13. On a careful understanding of the aforesaid judgments of our Honourable Apex Court and this Court, I could see that the sufficient cause as explained in Section 5 of the Limitation Act should receive a liberal construction so as to advance a substantial justice when no negligence or inaction or want of bona fide is imputable to a party claiming condonation." 8. The petitioner has not explained the delay caused in filing the application, even after receiving the notice of the execution proceedings. Therefore, there is no other option for this Court except to find that the petitioner was very much negligent and inactive in filing the application even after the receipt of notice of the execution proceedings. Hence, the lower Court has rightly come to a conclusion to allow the application filed by the petitioner for condoning the delay. Therefore, there is no reason available for this Court to interfere with the order passed by the lower Court. 9. Accordingly, this revision petition fails and dismissed. No order as to costs.