C SELVARAJ Vs. M SUBRAMANI

JUDGEMENT

(1.) THE petitioner has filed this revision petition against the order of the learned District Munsif, Ambur, dismissing the petition filed by him in I. A. No.502 of 1998 to condone the delay of 283 days in filing the petition for setting aside the ex parte decree passed on 12.11.97.

(2.) THE respondent herein filed the said suit for declaration of his title in respect of the suit property and for recovery of possession of 75 cents. THE suit was originally filed at the District Munsif Court, Tirupattur and numbered as O.S.No.95 of 1995. Due to the change in the territorial jurisdiction, the said suit was transferred to Ambur District Munsif Court and numbered as O.S.No.685 of 1996. As the petitioner was not represented an ex parte decree was passed on 12.11.1997. THE petitioner filed I.A.No.502 of 1998 to condone the delay of 283 days in filing the petition for setting aside the ex parte decree. In the affidavit filed in support of the said I. A. the petitioner has stated that he did not know about the transfer of the suit to the Ambur Court and he did not know the date of hearing of the suit. He was under the impression that his counsel would inform the progress of the suit. Since he had not received any letter from the counsel, he did not know anything about the progress of the suit. He received the notice in R.E.P.No.79 of 1998. After the receipt of the notice he met his counsel at Thirupattur who informed the petitioner that he already wrote a letter to the petitioner. However, the petitioner did not receive the letter. THEreafter the petitioner engaged a counsel at Ambur and came to know through him that he was set ex parte on 1.10.1997 for non-filing of the written statement and an ex parte decree was passed on 12.11.97. THE petition for setting aside the ex parte decree ought to have been filed on or before 12.12.97, but the same was filed on 21.9.98. Hence there is a delay of 283 days which is neither wanton nor wilful, but due to the communication gap between the counsel and the petitioner.

(3.) WHEN such argument was advanced by the learned counsel for the petitioner, directed him to get an affidavit from the counsel appeared for the petitioner at Thirupattur Court, as I find from the proceedings of the lower Court that the counsel engaged by the petitioner at Thirupattur Court appeared at Ambur court also. Even though twice time was taken, the learned counsel for the petitioner ultimately informed the Court that the said counsel engaged by the petitioner at Thirupattur Court is not willing to file an affidavit that he did not appear at Ambur Court. Hence the statement made by the learned District Munsif that the petitioner was represented by the counsel at Ambur and inspite of several adjournments the petitioner did not take any steps to file the written statement, has to be accepted.