Research › Search › Judgment

Madras High Court · body

2017 DIGILAW 1045 (MAD)

Perumal (Died) v. Senthamarai

2017-04-12

G.JAYACHANDRAN

body2017
ORDER : This revision petition is directed against the dismissal of I.A.No.1443 of 2003 filed under Section 5 of the Limitation Act, to condone the delay of 257 days. 2. The background facts of this revision is as under:- O.S.No.733/97 was filed by the legal heirs of one Muthammal born through her first husband by name, Ramasamy, against the legal heirs of Muthammal born through her second husband Vellaiya Gounder alias Vandikaran. After filing the written statement, the defendants failed to conduct the case and therefore, ex parte decree was passed against them on 06.01.2003. 3. Thereafter, when the final decree petition was filed, the revision petitioners have taken out an application to set aside the ex parte decree. In filing that application, there was a delay of 257 days. Hence, application under Section 5 of the Limitation Act was filed and the same was dismissed by the lower Court, on the ground that though medical ground has been cited for the delay, no piece of evidence has been produced before the Court to show that the first petitioner was suffering from knee pain and chest pain and the first petitioner underwent treatment for the said illness. Further, even if it is true, nothing prevented the other petitioners to attend the Court and conduct the case. For the above said reasons, the lower Court has held that the petitioners/defendants have failed to explain the delay with sufficient cause. 4. Aggrieved by the dismissal of Section 5 application, the present revision petition is filed, on the ground that the lower Court has overlooked the fact that the suit was posted for trial on 06.01.2003. On the same day, the revision petitioners/defendants were set ex parte, without affording opportunity to produce documentary evidence. In the application filed under Section 5 of the Limitation Act, to condone the delay of 257 days in filing the application to set aside the ex parte decree, the Court has passed an order rejecting the application in a pedantic way. 5. The suit for partition was instituted in the month of October 1997. The defendants have filed their written statement as early as on 28.06.1999 and since then, the matter has been kept adjourned for 21/2 without examination of witness. When the defendants failed to attend the Court to get along with the trial, they were set ex parte on 06.01.2003. The suit for partition was instituted in the month of October 1997. The defendants have filed their written statement as early as on 28.06.1999 and since then, the matter has been kept adjourned for 21/2 without examination of witness. When the defendants failed to attend the Court to get along with the trial, they were set ex parte on 06.01.2003. The application to restore the suit was filed on 23.10.2003 after 9 months. When there are three defendants, the alleged illness is attributed only to the first defendant. The other two defendants also have not shown any interest in conducting the case. The reason for their non appearance not been substantiated with reasonable and acceptable evidence. 6. Courts always be liberal while condoning the delay, if there is enough cause shown for non appearance. But, if the reason stated is vague or unsupported with any acceptable reason, then the Court cannot come to rescue for a litigant who just try to protract the proceedings on false pretext. 7. In this case, when the suit for partition was filed regarding the property held by the common ancestor, after filing written statement, no interest has been shown by the revision petitioners/defendants to proceed with the trial. It is not the case of the revision petitioners that they were not aware of the ex parte decree passed against them. The only reason stated by them is that since one of the revision petitioners fell ill, they were all attending on him and did not show any interest to set aside the ex parte decree immediately. If the alleged illness was so critical, there should have been some piece of evidence which had prevented all the defendants from filing appropriate petition within the time limit. 8. In the absence of evidence, this Court cannot come to any other conclusion except the conclusion arrived by the lower Court. This Court finds no illegality or irregularity in the order passed by the Trial Court, which is impugned before this Court by way of revision. Therefore, this Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.