PALANISAMY Vs. LAKSHMI

JUDGEMENT

(1.) THE 2nd defendant in O.S. No. 55 of 2005 on the file of the District Munsif-cum-Judicial Magistrate Court, Kangeyam, Erode District is the revision petitioner.

(2.) THE 1st respondent herein filed the suit for partition of her 4/9th share in the suit property and in that suit the revision petitioner filed statement and thereafter she did not prosecute the case and she was set exparte and the 1st defendant was also set exparte and the preliminary decree was passed on 7.9.2006 and thereafter, the revision petitioner filed an application under Order 9 Rule 13 CPC., to set aside the exparte decree on 9.10.2006 and did not take further steps to number the said application. Mean while, the Decree holder/ 1st respondent filed I.A. No. 990 of 2010 for passing final decree and in that application the revision petitioner entered appearance and filed a counter stating that he filed as application to set aside the exparte decree on 9.10.2006 and that was not represented immediately as the settlement talks were going on between the parties and the paper was also mixed with other case bundle and hence there was a delay and thereafter filed I.A. No. 161 of 2011 in O.S. No. 55 of 2005 to condone the delay of 1541 days in representing the application filed on 9.10.2006 to set aside the exparte decree. That application was dismissed and as against the same, this revision is filed.

(3.) IT is no doubt true that the delay can be condoned only on proper and sufficient cause being shown by the petitioner. In the Judgments cited by the learned counsel for the 1st respondent, this court has taken the view that even in the case of delay in representation unless the revision petitioner gives proper explanation, the delay cannot be condoned. In the Judgment reported in 2008 (5) CTC, 438 (Dhanalakshmi Financiers Vs. Soundarammal and 7 others) and in the Judgment reported in 2009 (5) Law Weekly, 880 (Vellaithai and others Vs. V. Duraisami), the suit was for specific performance and in that context the Courts have held that the delay has not been properly explained. In the Judgment reported in 2006 (1) CTC, 187 (A.Muthusamy Vs. Muniammal and others), the suit was for partition and the delay was not condoned holding that the petitioner did not have any valid defence and there is no deprivation of valuable right to the petitioner. In the Judgment reported in 2006 (3) CTC, 484 (Danial Textiles Vs. State Bank of Travancore), the suit was filed by the Bank and the suit was dismissed for default and there was a delay in representing the application filed to restore the suit and that petition was allowed by the court on the basis of undertaking given by the Bank they would not charge interest for the period of delay. Therefore, having regard to the facts of those cases, this Court has held that the delay in representation must also be properly explained.