MOHANA ACHARI Vs. ANNAMALAI

JUDGEMENT

(1.) This revision petition has been filed by the petitioner against the order of dismissal passed in I.A.No.40 of 2009 in O.S.No.151 of 2005 dated 19.03.2010, an application to condone the delay of 754 days in filing the application to set aside the exparte decree.

(2.) Heard Mr.A.Rajendrakumar, the learned counsel for the petitioner. No appearance on behalf of the respondents despite their names are printed in the cause list.

(3.) The learned counsel for the petitioner would submit in his argument that the lower Court was not considering the reasons submitted by the petitioner in causing the delay to file an application to set aside the exparte decree passed against him but it had perversely dismissed the application. He would further submit in his argument that the petitioner came to know about the exparte decree only after receiving a notice in the execution petition and when he approached his counsel then only he could understand that there was a delay of 754 days in filing an application to set aside the exparte decree. He would further submit in his argument that the petitioner is a rustic and illiterate old man from a rural area and he has no malafide in his conduct. He would further submit that the alleged reasoning given by the lower Court that the knowledge of exparte decree to the petitioner could be made through the advocate notice sent on 03.12.2007 cannot be correct since the said notice was in English that it could not be understood by the petitioner who is an illiterate old person. He would also submit in his argument that the suit has been filed by the petitioner seeking for declaration of title to the suit property and also for recovery of possession and the petitioner is admittedly in possession of the suit property and he is likely to be evicted from the property at any time on the exparte decree without giving an opportunity to him to contest the suit filed by the respondents. He would further submit in his argument that he has got a very good case in the suit and the denial of condonation tantamounts to a fore-closure of his meritorious case to extinguish his right prematurely, under the exparte decree. He would also cite a judgment of the Hon'ble Apex Court reported in 1998(7) SCC 123 in between N.Balakrishnan v. M.Krishnamurthy to the principle that the delay caused in filing an application to set aside the exparte decree should be liberally construed. He would also bring into the notice of the judgment of this Court reported reported in 2009 (5) CTC 48 in between Shanmugam v. Chokalingam. He would rely upon the said judgment for the principles laid down by various judgments of Hon'ble Apex Court, regarding sufficient cause as explained in Section 5 of the Limitation Act that it should receive a liberal consideration so as to advance substantial justice, when no negligence or inaction or want of bona-fide is imputable to a party claiming condonation. He would also submit that there was no such negligence on the part of the petitioner and therefore, the sufficient cause found under Section 5 of Limitation Act is applicable to the case in which the lower Court ought to have exercised its discretion to condone the delay in order to give an opportunity to the petitioner for contesting the suit. Therefore, he would request the Court to interfere with the orders passed by the lower Court and set aside the same and thus to allow the revision.