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2012 DIGILAW 913 (MAD)

Palanisamy v. Lakshmi

2012-02-21

R.S.RAMANATHAN

body2012
Judgment :- 1. The 2nd defendant in O.S. No. 55 of 2005 on the file of the District Munsif-cum-Judicial Magistrate Court, Kangeyam, Erode District is the revision petitioner. 2. The 1st respondent herein filed the suit for partition of her 4/9th share in the suit property and in that suit the revision petitioner filed statement and thereafter she did not prosecute the case and she was set exparte and the 1st defendant was also set exparte and the preliminary decree was passed on 7.9.2006 and thereafter, the revision petitioner filed an application under Order 9 Rule 13 CPC., to set aside the exparte decree on 9.10.2006 and did not take further steps to number the said application. Mean while, the Decree holder/ 1st respondent filed I.A. No. 990 of 2010 for passing final decree and in that application the revision petitioner entered appearance and filed a counter stating that he filed as application to set aside the exparte decree on 9.10.2006 and that was not represented immediately as the settlement talks were going on between the parties and the paper was also mixed with other case bundle and hence there was a delay and thereafter filed I.A. No. 161 of 2011 in O.S. No. 55 of 2005 to condone the delay of 1541 days in representing the application filed on 9.10.2006 to set aside the exparte decree. That application was dismissed and as against the same, this revision is filed. 3. It is submitted by the learned counsel for the revision petitioner that admittedly, the petition to set aside the exparte decree was filed on 9.10.2006 and it was not represented immediately as the settlement talks were going on between the parties and the paper was also mixed with the other case bundle and on receipt of the final decree notice, he took steps to represent the same and that is the reason for the delay. 4. 4. On the other hand, the learned counsel for the 1st respondent submitted that the revision petitioner has not given any proper explanation for condoning the delay of 1541 days and he entered appearance in the final decree proceedings in August 2010 and even thereafter he did not take any steps to represent the application filed earlier to set aside the exparte decree and the application was filed only in January 2011 and there is no explanation for the delay of five months and the revision petitioner has not produced any evidence regarding the compromise talks alleged to have been taken place between the parties. Considering all these aspects, the Court below has rightly dismissed the application. He also relied upon the Judgments reported in 2009 (5) Law Weekly, 880 (Vellaithai and others Vs. V. Duraisami), 2006 (1) CTC, 187 (A. Muthusamy Vs. Muniammal and others), 2008 (5) CTC, 438 (Dhanalakshmi Financiers Vs. Soundarammal and 7 others), 2006 (3) CTC, 484 (Danial Textiles Vs. State Bank of Travancore) and submitted that the revision petitioner has to satisfy the Court for the delay and there cannot be any difference in the case of representation or in the case of delay in filing the application and both must be viewed similarly and therefore in the absence of any satisfactory proof the delay cannot be condoned. 5. It is no doubt true that the delay can be condoned only on proper and sufficient cause being shown by the petitioner. In the Judgments cited by the learned counsel for the 1st respondent, this court has taken the view that even in the case of delay in representation unless the revision petitioner gives proper explanation, the delay cannot be condoned. In the Judgment reported in 2008 (5) CTC, 438 (Dhanalakshmi Financiers Vs. Soundarammal and 7 others) and in the Judgment reported in 2009 (5) Law Weekly, 880 (Vellaithai and others Vs. V. Duraisami), the suit was for specific performance and in that context the Courts have held that the delay has not been properly explained. In the Judgment reported in 2006 (1) CTC, 187 (A.Muthusamy Vs. Muniammal and others), the suit was for partition and the delay was not condoned holding that the petitioner did not have any valid defence and there is no deprivation of valuable right to the petitioner. In the Judgment reported in 2006 (3) CTC, 484 (Danial Textiles Vs. In the Judgment reported in 2006 (1) CTC, 187 (A.Muthusamy Vs. Muniammal and others), the suit was for partition and the delay was not condoned holding that the petitioner did not have any valid defence and there is no deprivation of valuable right to the petitioner. In the Judgment reported in 2006 (3) CTC, 484 (Danial Textiles Vs. State Bank of Travancore), the suit was filed by the Bank and the suit was dismissed for default and there was a delay in representing the application filed to restore the suit and that petition was allowed by the court on the basis of undertaking given by the Bank they would not charge interest for the period of delay. Therefore, having regard to the facts of those cases, this Court has held that the delay in representation must also be properly explained. 6. In this case, the suit is filed for partition and the parties are close relatives and the revision petitioner has taken the defence that he became the absolute owner of the property under the Will. Therefore, the revision petitioner has got an arguable case on merits and he has also stated so in the written statement. Further, admittedly, the application was filed on 9.10.2006 and it was not represented till the final decree application was filed by the plaintiff. In the Judgment reported in 2011 (4) MLJ 50 (N. Viswanathan and others Vs. Union of India), the Hon’ble Division Bench of this Court in such circumstances held that when the application was filed in time the delay in representation can be liberally considered. 7. Therefore, having regard to the facts of the case and the relationship between the parties and the explanation given by the revision petitioner that there was a compromise talks, in my opinion, the delay can be condoned and the delay is condoned on condition of payment of cost of Rs.5000/- (Rupees Five Thousand only) payable by the revision petitioner to the counsel appearing for the 1st respondent within a period of two weeks from the date of receipt of a copy of this order. The court below is directed to number the application filed by the revision petitioner to set aside the exparte decree if it is in order and dispose of the same within a period of four weeks from the data of receipt of a copy of this order. The court below is directed to number the application filed by the revision petitioner to set aside the exparte decree if it is in order and dispose of the same within a period of four weeks from the data of receipt of a copy of this order. If that application is allowed, the Court below is directed to dispose of the suit within a period of two months thereafter. With the above direction, the civil Revision Petition is allowed. No costs. Consequently, the connected Miscellaneous Petition is closed.