DEVI Vs. K JAYARAMAN CAVETOR

JUDGEMENT

(1.) THE defendant is the petitioner whose application is condone the delay of 316 days is filing the petition to set aside the ex parte decree was dismissed.

(2.) THE respondents filed C.S.No.551 of 1995 before this Court. Subsequently, upon enhancement of pecuniary jurisdiction, it was transferred to the City Civil Court and numbered as O.S.No.9306 of 1995. THE petitioner was not aware of the transfer and therefore did not appear in the City Civil Court. Further since the petitioner's counsel also fall ill, they could ascertain the actual state of affairs. Only when E.P.No.1612 of 1999 was served on them, they came to know that the suit was decreed ex parte on 12.12.1998. the delay in filing the application had...only in the above circumstances and not on account of any negligence or indifference.

(3.) ON a consideration of the arguments advance on both sides and on a perusal of the records sent by the lower court as well as the extract of the suit register furnished by the learned counsel for the respondent, I am not able to come to the conclusion, that the learned counsel for the petitioner here who had entered appearance in this court when the suit was originally filed, had actually takes notice and appeared on several hearings before the City Civil Court. I am inclined to accept the explanation given by Mr. M.K. Kabir that the courts below had taken note of the appearance entered by him in this Court and had proceeds on that basis. In the decision reported in Edwin Alex v. Syndicate Bank, Karingal Branch rep. by its Branch Manager, 1999 (2) CTC 623, the learned Judge while condoning the delay held as follows: "Moreover, even in such event, when the delay is quite long, the petitioner cannot be punished with denial of further opportunity to prosecute the main case in which event, the petitioner's entire right regarding the suit properties would become jeoparadised. Hence, proper course to adopt under such circumstances is not to punish the petitioner with the dismissal and denial of opportunity to carry on with the enquiry, or trial of the main proceedings but to condone to burden him with costs."