(1.) THIS Revision is preferred against the order of the additional District Munsif, Kallakuruchi, made in I. A. No. 2993 of 1998 in o. S. No. 747 of 1990, dated 27-01-1999, dismissing the Application filed under section 151 C. P. C. , declining to condone the delay of 1024 days in representing the Petition to set aside the exparte decree. The 11th Defendant Ayyasamy, is the Revision Petitioner.
(2.) THE relevant facts for disposal of this Revision petition could briefly be stated thus:- a) O. S. No. 747 of 1990:- Claiming through one ayyangkutty, the Plaintiffs have filed the Suit for 1/3rd share in the suit properties. THE parties are related as under:- Perumal (Died in 1950) Sadayan Ayyangkutty Guardu @ Chinnapaiyan (Died in 1965) (Died in 1985) (Died in 1982) Ramasamy Ayyakannu Dhanapal Pip Pappa Jaya Selvamani annamalai Ganesan (D. 1) ( D. 4) (D. 5) (Died in 1980) (P. 1) (P. 2) (P. 3) (D. 3) (D. 2) Dhanakodi Sellan Ammusamy (D. 6) (D. 7) (D. 8) Claiming their 1/3rd share, the Plaintiffs have issued legal notice on 8-5-1990. Even after the receipt of the Notice, the Defendants have not partitioned the property and allotted 1/3rd share to the Plaintiffs (1/9th share each ). Hence, the Plaintiffs have filed this Suit for partition of their 1/3rd share. b) Denying the averments in the Plaint, the Second defendant has filed the Written Statement contending that the suit properties belonged to his father Guardu alone. It is further alleged that the father of the Plaintiffs, viz. , Ayyangkutty left the Village about 30 years back and that he has never returned back to the Village. All the Plaintiffs were married even before 30 years and ousted from the possession and enjoyment of the suit properties. THE Defendants have perfected their title by way of adverse possession. Hence, the Plaintiffs are not entitled for claiming partition in the suit properties. To the Notice issued by the Plaintiffs, the Defendants have sent a suitable reply. c) Though, the Defendants have filed the Written statement, the Defendants have not appeared on the date of hearing (12-03-1996 ). Hence, the Suit was decreed exparte on 12-03-1996. Unnumbered i. A. of 1996 was filed on 9-4-1996 under Or. 9 R. 13 C. P. C. to set aside the exparte decree dated 12-03-1996. THEre was a delay of 19 days in filing the application. Hence, another Application in Unnumbered I. A. of 1996 was also filed under Section 5 of the Limitation Act, to condone the delay of 19 days in filing the Application to set aside the exparte decree. In the supporting affidavit, the Defendants have alleged that they have left the Village in connection with attending a marriage and the marriage work and hence, could not appear on the date of hearing (12-03-1996 ). According to them, their non-appearance on 12-03-1996 was neither wanton nor wilful and prayed to set aside the exparte decree passed on 12-03-1996. d) That Application was returned for rectification of certain defects. But, they have not represented within the stipulated time. It is alleged that in the meantime, there was a Panchayat and the Panchayatdars directed the Defendants to pay certain amount to the Plaintiffs and the plaintiffs also agreed for the same. But, later the Plaintiffs have refused to receive that amount and hence, the compromise could not fructify. Alleging that in view of the compromise entered into during the interregnum period, they could not represent the Application, the Defendants have filed I. A. No. 2993 of 1998 to condone the delay of 1024 days in representing those Applications. In the supporting affidavit, they have referred to about the Panchayat and the circumstances, wherein the Plaintiffs have refused to receive the amount. e) THE Plaintiffs have filed the counter statement denying the allegations in the affidavit. THE Plaintiffs have denied any such panchayat. THEy have alleged that though the Application was filed on 9-4-1996, steps have not been taken for representing the same within the stipulated time. THE Panchayat has been alleged only to explain away the inordinate delay in filing the Application. f) Upon consideration of the contention of both the parties, the learned District Munsif has found that there is an inordinate delay in representing the Application. Finding that no satisfactory material has been adduced showing the Panchayat, it was further held that even if the alleged Panchayat has been held, which did not fructify, the Application ought to have been filed within one year, since, as per the alleged compromise the time for payment was only one year. It was further held that, if the Plaintiffs have not agreed to receive the amount as per the compromise, the Defendants ought to have been filed the Application within the period of one year. Finding that there is an inordinate delay of two years and the delay has not been satisfactorily explained, the trial Court dismissed the Application.
(3.) IN the supporting affidavit, the Defendants have clearly alleged that during the interregnum period, between 9-4-1996 till the date of filing of the Application in 1998, there was a Panchayat and the panchayatdars have directed the Defendants to pay the amount and the compromise did not fructify in view of the refusal of the Plaintiffs to receive the amount. There is nothing to disbelieve the version of the Defendants. Being villagers and Rustic, quite reasonably the Defendants were waiting to persuade the Plaintiffs through the Panchayatdars to accept the amount. The Defendants being Rustic may not have been aware of the implication of the non-representation of the unnumbered Application to set aside the exparte decree and the unnumbered Application to condone the delay of 19 days in filing that Application. The learned District Munsif has not properly appreciated the averments in the Affidavit. IN cases of this nature, it would be futile to expect the examination of the Panchayatdars, who may not be willing to take sides with the parties. The learned District Munsif has not adopted a liberal approach in the reasons set forth by the parties, whether they had sufficient cause for the delay in representing the Application.