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2013 DIGILAW 2805 (MAD)

M. Nagarajan v. Late K. Karuppa Gounder

2013-08-02

K.RAVICHANDRA BAABU

body2013
Judgment : 1. The above civil revision petition is filed challenging the order passed by the court below in dismissing the application filed under section 5 of the Limitation Act. The petitioners herein as defendants 1, 2 and 11 in O.S.No.402/2004 on the file of the District Munsif Court, Palladam filed the above application seeking to condone the delay of 182 days in filing petition to set aside the exparte decree passed in the said suit on 24.02.2005. 2. Heard the learned counsel appearing for the petitioners and the respondents. 3. One Karuppa Gounder filed the above said suit for partition against the petitioners and others. After his death, the present respondents were brought on record as legal heirs of the said deceased plaintiff. 4. In the said suit, the petitioners herein who are defendants 1, 2 and 11 were set exparte on 10.02.2005 for not filing the written statement. Consequently, an exparte decree came to be passed on 24.02.2005. Only to set aside the exparte decree, the petitioners filed the present application under section 5 of Limitation Act to condone the delay of 182 days in filing such set aside petition. It is stated by them in the affidavit filed in support of the said application that due to lack of information from their Advocates office, they were not able to contact their respective advocates and file their written statement on 10.02.2005 and they came to know about the exparte decree only after receiving notice in the final decree application in I.A.No.673 of 2005. Apart from the said common reason for all the three petitioners, it is also further stated therein that the first petitioner was unwell during the relevant time and he recovered from illness only on 23.09.2005 and the said application came to be filed on the very next day viz. 24.09.2005. 5. The respondents herein resisted the said application by filing a counter. 6. The court below rejected the said application by holding that the petitioners have not shown the sufficient cause for condoning the delay and the illness pleaded as the reason has not been proved by them. It is also pointed out by the court below that in so far as the second and third petitioners are concerned, no such illness was pleaded and therefore, there is no reason stated for their non appearance. 7. It is also pointed out by the court below that in so far as the second and third petitioners are concerned, no such illness was pleaded and therefore, there is no reason stated for their non appearance. 7. Learned counsel Mr.V.P.Sengottuvel, appearing for the petitioners submitted that these defendants have got valid defense in the suit and their non appearance on 10.02.2005 and 24.02.2005 was not wilful and on the other hand, only due to the reasons stated in the accompanying affidavit. He further submitted that when the petitioners are having a valid defense in the said suit, they must be given an opportunity to contest the same on merits and in support of such submission, he relied on a decision of the Hon'ble Supreme Court in 2011(11) SCC 480 , Union of India v. Giani wherein the Apex Court allowed the condonation of delay as it felt that there was a strong arguable case on behalf of the appellants therein. 8. Per contra, Mr.Govi Ganesan learned counsel appearing for the respondents submitted that the court below has rightly rejected the application filed by the petitioners as they have not shown any sufficient cause for their non appearance. 9. I perused the respective pleadings of the parties as well as the order passed by the court below. 10. From the perusal of the affidavit filed in support of the application, the petitioners have specifically stated that there were lack of information from their advocates office and therefore, they were not able to contact their respective advocates to file their written statement on 10.02.2005. No doubt, it is true that parties should be vigilant and keep in touch with their Advocates to know the progress of the suit or other proceedings. But, at the same time, the reason which is stated that they were not informed about the progress of the matter by the Advocates office has not been disproved by the other side and in fact, there is no finding on that aspect by the court below. Needless to say that Counsel's failure should not penalise the parties. The court has taken the illness as the only reason given for all the three petitioners. I find that the reasoning of the court below in this aspect is not factually correct. Needless to say that Counsel's failure should not penalise the parties. The court has taken the illness as the only reason given for all the three petitioners. I find that the reasoning of the court below in this aspect is not factually correct. Further, the petitioners have filed the application immediately on the next day of receiving the notice in the final hearing proceedings. Therefore, there is some force in the contention raised by the petitioners apart from showing that they are serious about conducting the proceedings before the court below. 11. Considering all these facts and circumstances and also considering the fact that the delay is 182 days, I find that the order passed by the court below cannot be sustained and accordingly, the same is set aside. Consequently, the civil revision petition is allowed. As the petitioners have already filed their written statement along with their condone delay petition, it is for the court below to take up the suit and dispose of the same on merits and in accordance with law, within a period of four months from the date of receipt of a copy of this order. No costs. The connected miscellaneous petition is closed.