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2025 DIGILAW 1168 (MAD)

Ponnammal @ Pasuvathal v. Kalaivani

2025-02-26

R.VIJAYAKUMAR

body2025
ORDER : The present civil revision petition has been filed by the defendant in O.S.No.998 of 2017 on the file of the Additional Subordinate Court, Karur challenging the dismissal of her application to condone the delay of 1264 days in filing an application to set aside the exparte decree. 2.The respondent herein has filed the above said suit for the relief of specific performance based upon a registered sale agreement dated 19.09.2016. An alternative prayer was sought for to refund of the advance amount with interest. 3.The defendant had remained exparte and an exparte decree came to be passed on 28.02.2018. On the strength of the exparte decree, the plaintiff had filed E.P.No.160 of 2018 for execution of sale deed. The sale deed was executed on 21.12.2020 and E.P. was closed on 19.07.2021. 4.The decree holder had filed E.A.No.1 of 2021 for delivery of the property on 30.07.2021. The decree holder had also filed E.A.No.1 of 2023 seeking Police Aid for taking possession. The said application was allowed on 13.06.2023. The decree holder has taken delivery through Court on 24.07.2023. The delivery was recorded by the Execution Court on 27.07.2023 and E.A.No.1 of 2021 was closed. 5.The defendant in the suit had filed I.A.No.1 of 2021 on 17.09.2021 to condone the delay of 1264 days in filing an application to set aside the exparte decree. Paragraph No.3 of the said affidavit is extracted as follows: “3.The above case was posted on 31.01.2018 for appearance. On and from 15.01.2018, I was suffering from Jaundice and I was taking native treatment at Pudukkottai and various places. Hence, I was not able to meet my advocate and unable to instruct him to appear into Court on that day. During third weeks of March 2020, I have recovered from the Jaundice. On and from 24.03.2020, due to Covid 19 National lockdown was declared by our Government, hence I am not came out anywhere. Thereafter, I met my advocate and I came to know the exparte order passed against me on 31.01.2018 and as such the above case was decreed on 28.02.2018. Hence, this application is filed to condone the delay of days in filing set aside exparte decree.” 6.The decree holder had filed a counter contending that the judgment debtor has received the summon in the suit as well as notice in the execution proceedings. Hence, this application is filed to condone the delay of days in filing set aside exparte decree.” 6.The decree holder had filed a counter contending that the judgment debtor has received the summon in the suit as well as notice in the execution proceedings. The certified copies of the summons and the notices that were served upon the defendant were enclosed along with a counter. The decree holder had contended that the reasons assigned in the condone delay application is not believable and he prayed for dismissal of the application. 7.The trial Court after considering the submissions on either side, has proceeded to dismiss the application on the ground that the defendant has not chosen to produce any document to establish the fact that she was taking native treatment for jaundice at Pudukkottai or at any other place and that too for a period of 1264 days. The trial Court has further found that the defendant has been served with summons in the suit and notice in the execution proceedings. Therefore, the defendant has voluntarily chosen to stay away from the suit proceedings. 8.Based upon the above said observations, the trial Court has dismissed the application to condone the delay. Challenging the same, the present civil revision petition has been filed by the judgment debtor through her power agent. 9.According to the revision petitioner, the defendant in the suit is a physically challenged person. Some relatives who were assisting the defendant have misguided her for signing the sale agreement. The defendant has signed the document only thinking it to be a mortgage deed. She has lost her husband and her son is residing away from her. In such circumstances, the Court should take a lenient view and a liberal approach in condoning the delay. 10.The learned counsel for the petitioner has relied upon a judgment of the Hon'ble Supreme Court reported in AIR 1987 SC 1353 ( Collector, Land Acquisition, Anantnag and another Vs. Katiji and others ) wherein the Hon'ble Supreme Court has held that the Court should adopt a liberal approach in dealing with condone delay application. He had also relied upon another judgment of the Hon'ble Supreme Court reported in (1998) 7 SCC 123 ( N.Balakrishnan Vs. Katiji and others ) wherein the Hon'ble Supreme Court has held that the Court should adopt a liberal approach in dealing with condone delay application. He had also relied upon another judgment of the Hon'ble Supreme Court reported in (1998) 7 SCC 123 ( N.Balakrishnan Vs. M.Krishnamurthy ) wherein the Hon'ble Supreme Court has held that in cases where the trial Court has refused to condone the delay, the superior Court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding, even untrammelled by the conclusion of the lower Court. 11.According to the revision petitioner, considering the physical challenges faced by the defendant and value of the property, a chance may be given to the defendant to defend the proceedings. Hence, he prayed for allowing the revision petition. 12.Per contra, the learned counsel for the respondent/decree holder had contended that the defendant had received the suit summons and she has also received notices in the execution proceedings. However, she has voluntarily chosen not to appear before the Court after receipt of notice. In the affidavit filed in respect of the condone delay petition, only jaundice has been cited as a reason for such a huge delay of 1264 days. However, the learned counsel for the revision petitioner is attempting to build up a different case before this Court raising a plea that the defendant is a physically challenged person and she was misguided by her relatives. No such pleadings were raised before the trial Court. 13.The learned counsel for the respondent had further contended that the dates and events would clearly indicate that the defendant had ample opportunities to file her written statement and contest the proceedings. Despite the said fact, she has not appeared before the Court and had let the suit to be decreed exparte. The learned counsel for the respondent also relied upon the judgment of the Hon'ble Supreme Court reported in (2010) 8 SCC 685 (Balwant Singh (dead) vs. Jagdish Singh and others) wherein the Hon'ble Supreme Court had held that if a party has been thoroughly negligent in implementing its rights and remedies, it will be unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly. Relying upon the said judgment, he had further contended that, unless explanation rendered is reasonable or plausible, the Court cannot condone the delay. Liberal construction cannot be equated with doing injustice to the other party. 14.The learned counsel for the respondent has also relied upon a recent decision of the Hon'ble Supreme Court reported in 2025 INSC 53 ( H.Gurusamy and others Vs.A.Krishnaiah since deceased by L.Rs ) wherein the Hon'ble Supreme Court has held that the Court should first ascertain the bonafides of the explanation offered by the party seeking condonation. Only if sufficient cause is assigned by the litigant and the opposition of the other side are equally balanced, the merits of the matter can be gone into for the purpose of condoning the delay. Therefore, according to him, when the delay has not been properly explained, the defendant cannot be permitted to enter into the merits of the case. Hence, he prayed for dismissal of the revision petition. 15.I have considered the submissions made on either side and perused the material records. 16.The defendant in a suit for specific performance has suffered an exparte decree on 28.02.2018. In the execution proceedings, a sale deed has been executed in favour of the decree holder on 22.12.2020. Nine months thereafter I.A.No.1 of 2021 has been filed by the judgement debtor on 17.09.2021 under Section 5 of the Limitation Act to condone the delay in setting aside the exparte decree. There is no pleadings in the said affidavit that she being a physically challenged person, she was misguided by her relatives from following the suit proceedings. In such circumstances, this Court has to analyse the reasons assigned for the delay in filing Order 9 Rule 13 application. The only reason that has assigned in the condone delay application is that she had suffered jaundice and she was taking native treatment and therefore, she was not able to file an application in time for setting aside the exparte decree. The length of delay will clearly falsify the case of the defendant that she was affected with jaundice. Therefore, this Court is not inclined to believe the said reason for condoning the delay. 17.It is the contention of the learned counsel for the revision petitioner that a technical approach could not be taken and the Court should take a lenient view in condoning the delay. Therefore, this Court is not inclined to believe the said reason for condoning the delay. 17.It is the contention of the learned counsel for the revision petitioner that a technical approach could not be taken and the Court should take a lenient view in condoning the delay. 18.The Hon'ble Supreme Court in a decision reported in 2025 INSC 53 ( H.Gurusamy and others Vs.A.Krishnaiah since deceased by L.Rs ) in Paragraph Nos.16 & 17 are as follows: “16. The length of the delay is definitely a relevant matter which the court must take into consideration while considering whether the delay should be condoned or not. From the tenor of the approach of the respondents herein, it appears that they want to fix their own period of limitation for the purpose of instituting the proceedings for which law has prescribed a period of limitation. Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long, it cannot be presumed to be non-deliberate delay and in such circumstances of the case, he cannot be heard to plead that the substantial justice deserves to be preferred as against the technical considerations. While considering the plea for condonation of delay, the court must not start with the merits of the main matter. The court owes a duty to first ascertain the bona fides of the explanation offered by the party seeking condonation. It is only if the sufficient cause assigned by the litigant and the opposition of the other side is equally balanced that the court may bring into aid the merits of the matter for the purpose of condoning the delay. 17. We are of the view that the question of limitation is not merely a technical consideration. The rules of limitation are based on the principles of sound public policy and principles of equity. No court should keep the ‘Sword of Damocles’ hanging over the head of a litigant for an indefinite period of time. 19.In view of the judgment of the Hon'ble Supreme Court, it is clear that the Court cannot presume that the delay is not a deliberate one. This Court has already arrived at a finding that the explanation offered by the judgment debtor is not believable, for condoning such a huge delay of 1264 days. 19.In view of the judgment of the Hon'ble Supreme Court, it is clear that the Court cannot presume that the delay is not a deliberate one. This Court has already arrived at a finding that the explanation offered by the judgment debtor is not believable, for condoning such a huge delay of 1264 days. In such circumstances, this Court cannot go into the merits of the suit. 20.In view of the above said deliberations, there are no merits in the revision petition and this civil revision petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.