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2018 DIGILAW 4568 (MAD)

V. Perumal v. P. Mohan

2018-12-20

T.RAVINDRAN

body2018
JUDGMENT : 1. The civil revision petition is directed against the fair and decreetal orders, dated 01.09.2009, passed in I.A.No.750 of 2008 in O.S.No.199 of 2005, on the file of the Principal Subordinate Court, Karur. 2. The revision petitioner is the defendant in the suit, in O.S.No.199 of 2005, on the file of the Principal Subordinate Court, Karur. It is noted that the said suit has been laid by the respondent/plaintiff for specific performance and other reliefs. In the above said suit, though the revision petitioner had entered appearance and contested the suit, it is found that when the suit was posted for the cross-examination of the plaintiff on 17.07.2007 and despite the acceptance of the revision petitioner that he had been informed the above said position by his Advocate, according to the revision petitioner, as he had been suffering from jaundice and accordingly, taking siddha treatment at Pudukkottai, as advised by his family members, unable to meet his counsel and instruct him to proceed further in the matter and accordingly, the ex parte decree had been passed against him on 17.07.2007 and only thereafter, when he met his counsel, he came to know about the same and resultantly, preferred the application to set aside the ex parte decree and inasmuch as the delay of 182 days had occurred in preferring the application, had come forward with I.A.No.750 of 2008 for the condonation of the above said delay. 3. 3. The respondent had resisted the above said application of the revision petitioner contending that despite the knowledge of the case having been posted for the cross-examination of P.W.1 on 17.07.2007 and the information about the same to the revision petitioner by his counsel, the case projected by the revision petitioner that as he was suffering from jaundice and taking siddha treatment at Pudukkottai, he was unable to contact his counsel and give further instruction in the matter to proceed and thereby, the ex parte decree had come to be passed, are all false and the further case of the revision petitioner that thereafter, he came to know about the ex parte decree and the delay thereby had occurred are also false and it is contended that the above said reasons are projected only for the purpose of the application and further, it is stated that based on the decree passed in the suit, the respondent had preferred the execution petition and notice had been ordered in the said execution proceedings to the revision petitioner and following the same, the revision petitioner had entered appearance through his counsel and took several adjournments for filing counter and accordingly, thereafter, on merits, the Executing Court had ordered in favour of the respondent and thereby, the respondent had also submitted the draft sale deed and also deposited the requisite NJS and the balance sale consideration had also been deposited and despite the knowledge of the above said proceedings, to say that the revision petitioner had later came to know about the ex parte decree for the reasons stated by him are totally tainted with mala fides and only with a view to delay the respondent from realizing the fruits of the decree, the present application has been preferred and hence, the application is liable to be dismissed. 4. The Court below, on a consideration of the rival contentions put forth by the respective parties, finding that the cause adduced by the revision petitioner is unacceptable and also not established in any manner, chose to dismiss the application preferred by the revision petitioner for the condonation of the delay. Impugning the same, the present civil revision petition has been preferred. 5. Impugning the same, the present civil revision petition has been preferred. 5. As rightly determined by the Court below, the revision petitioner having come forward with the application for seeking the condonation of the delay as above stated and when the same has been stoutly resisted by the respondent, in toto, every endeavour should have been made by the revision petitioner to establish that the cause pleaded by him for the condonation of the delay is a sufficient cause as contemplated under Section 5 of the Limitation Act and furthermore, the revision petitioner should have also established the same, at least prima facie, by placing acceptable and reliable materials. On the other hand, when the alleged illness and the treatment said to have been taken by the revision petitioner during the relevant period at Pudukkottai have not been established by the revision petitioner, by placing any material whatsoever, despite the challenge put to the same by the respondent and on the other hand, when it is noted that the revision petitioner had been all along participating in the execution proceedings preferred by the respondent and even therein had suffered an order, it is seen that only thereafter, he had chosen to come forward with an application to set aside the ex parte decree passed against him with a delay condonation application. In such view of the matter, the reasons put forth by the revision petitioner that much later, he had come to know about the ex parte decree passed against him and thereby, the delay had occurred are found to be totally false and unacceptable as determined by the Court below. On the other hand, as above noted and determined by the Court below, also rightly, despite having full knowledge about the ex parte decree as well as having taken part in the execution proceedings of the respondent and when the alleged cause projected by the revision petitioner for the condonation of the delay is found to be bereft of particulars and also not established by the revision petitioner, in any manner as per law, in all, it is found that the Court below is fully justified in dismissing the application preferred by the revision petitioner for the condonation of the delay. In such view of the matter, no valid reason has been projected for disturbing the impugned order of the Court below and resultantly, the civil revision petition is dismissed with costs. Consequently, connected miscellaneous petition is closed.