RAJAMMAL Vs. RAJAGOPAL

JUDGEMENT

(1.) Being aggrieved by the dismissal of an application in I.A. No. 530 of 2010 in O.S. No. 46 of 2005 on the file of the District Munsif, Tirupur, refusing to condone the delay of 733 days in filing an application to set aside an ex parte decree, passed on 28.4.2006, the revision petition has been filed. The revision petitioner is the second defendant in the suit.. Her husband, N. Mariappan. is the third defendant in the suit. The suit has been filed, by the first respondent, Rajagopal, for a declaration of title to the suit property and for a further direction to the second defendant, Ms. Rajammal, to hand over possession of the property to the plaintiff, failing which to enable the plaintiff to take possession through the process of Court. The plaintiff has also sought for a direction to the defendants 2 and 3, to pay damages of Rs. 7,200/-, for use and occupation of the suit property for three years, till the date of suit, with future interest at 12% p.a. and also for a direction to the abovesaid defendants to pay future damages at Rs. 200/- p.m., from the date of plaint, till the date of delivery of possession of the suit property.

(2.) Material on record discloses that the suit was posted for filing the written statement on 28.4.2006. Written statement was not filed by the defendants. Hence, the suit came to be decreed ex parte on 28.4.2006. Contending inter alia that the revision petitioner was affected by jaundice, since 15.3.2006 and therefore, both the revision petitioner and her husband/third defendant in the suit, had gone to Kollam, State of Kerala, to get treatment and on account of such illness, she had even lost her eyesight and only on 15.4.2008, she could recover from the illness and in the abovesaid circumstances, she could not appear on 28.4.2006 and file her written statement and that her absence was due to the abovesaid bona fide reasons, the revision petitioner has prayed to condone the delay of 733 days.

(3.) According to the revision petitioner, her husband being a lorry driver, was in Gujarat for sometime and in the abovesaid circumstances, both of them could not contact their counsel and instruct him to file the written statement. It is her further contention that she came to know about the ex parte decree only when she received notice in the execution petition in E.P. No. 15 of 2008. In the abovesaid circumstances, she has prayed to condone the delay of 733 days in filing an application to set aside the ex parte decree.