P KUMARESAN Vs. RAJAMMAL

JUDGEMENT

(1.) This Civil Revision Petition filed under Section 115 of the Code of Civil Procedure is directed against the fair and decreetal order dated 01.10.2009 in I.A.No.1244 of 2007 in O.S.No.225 of 2003, on the file of the Principal Sub-Court, Tiruppur.

(2.) The petitioner is the plaintiff in the suit and the respondent is the first defendant. The suit was filed for a decree of specific performance of the contract of sale, dated 02.08.1990. Due to the non-appearance of the first defendant/respondent, suit was decreed exparte on 29.02.1996. The respondent filed an application in I.A.No.1244 of 2003, to condone the delay of 4075 days in filing the petition to set aside the exparte decree. The reason assigned by the respondent is that after she received the suit summons, she had engaged an Advocate at Tiruppur to appear on her behalf, who is said to have taken time from the Court for filing written statement and that he would inform the respondent about the hearing date to enable him to file written statement. However, no intimation was received from the Advocate and in the mean time, the husband of the respondent, who was aged about 70 years, suffered a paralytic stroke and the respondent had to take him for treatment and was permanently staying in Palakkadu. Subsequently, the respondent's husband passed away on 01.02.2006. The respondent further stated that she came to know that the suit was decreed exparte only on 22.07.2007, after receipt of the notice in E.P.No.64 of 2007 and on enquiry, she found that the counsel engaged by her died about ten years back. Further, the respondent stated that she has never entered into an agreement with the plaintiff and has not seen him and the alleged agreement is a forged document and she has a valid defence in the suit. With the above reasons, the respondent sought for condonation of delay of 4075 days in filing the petition to set aside the exparte decree.

(3.) The petitioner opposed the prayer made by the respondent by filing a counter inter alia contending that the averments made by the respondent are absolutely false and frivolous and that the agreement was valid and the total sale consideration of Rs.77,000/- was fixed and the petitioner had paid Rs.60,000/- as advance and the pre-suit notice was issued on 02.11.1992, which was received by the respondent and she sent a reply notice on 06.11.1992 containing false and vexatious allegation, after which the petitioner had filed the suit on 12.04.1993. It was further contended that the suit was adjourned to 26.07.1993 for service of summons on the respondent and the second defendant, which was duly served. On 26.07.1993, the respondent appeared through her counsel and on the same date, the second defendant also appeared through counsel and the case was adjourned to 01.10.1993 to file written statement by both the defendants. On 01.10.1993, again the case was adjourned to 03.12.1993, as the defendants failed to file written statement further time was granted. Again on 03.12.1993, the time for filing written statement was extended till 15.04.1993 and thereafter, the case was adjourned to 19.08.1994 and again the time for filing written statement was extended till 25.11.1994. Further time was extended till 03.03.1995. It was further stated that subsequently the Court extended the time to file written statement and posted the matter to 22.07.1995 and further extended to 01.09.1995 and since written statement was not filed, the case was adjourned to 15.12.1995 and thereafter, once again adjourned to 16.02.1996. However, inspite of all these opportunities granted to the respondent to file written statement, she failed to avail the same and therefore, the Court passed an exparte decree on 29.02.1996.