RADHAKRISHNAN Vs. RAJA CHIDAMBARAM

JUDGEMENT

(1.) The first defendant in O.S. No. 190/2001 on the file of the learned District Munsif, Jayamkondam is the revision petitioner. The respondent herein is the sole plaintiff in that suit. That was a suit for partition. An ex parte preliminary decree was passed on 1-10-2001. To set aside that ex parte decree, the revision petitioner filed an application under Order 9, Rule 13 of the Code of Civil Procedure. Since there was delay, it was accompanied by I.A. No. 389/2002 filed under Sec. 5 of the Limitation Act, the delay being 365 days. The said application was dis- missed on merits. Hence the present revision.

(2.) Heard the learned counsel on either side. Learned counsel appearing for the respondent raised the preliminary issue namely, under the proviso to Sec. 115 of the Code as it stands today, the revision is not maintainable. He is right. Therefore I have decided to convert this revision filed under Sec. 115 of the Code into one under Art. 227 of the Constitution of India and decide the case on it's own merits. The reason given in the affidavit filed in support of the application to condone the delay is that the revision petitioner was suffering from acute jaundice which totally disabled him from moving out and that during the entire period of one year, he was taking native treatment. He would further state that he escaped from the jaws of death by God's grace and ultimately he got cured completely. Though there is no medical proof in support of such an ailment, yet finding that the defendant is not gaining anything in delaying the proceeding, I see no reason at all as to why I should not believe the statement made by him as stated above. Having regard to the manner in which the delay remains substantially explained and with a view to do complete justice between the parties. I am inclined to condone the delay. Accordingly, the order in challenge is set aside. The resultant position is that, I.A. No. 389/2002 stands allowed as prayed for.

(3.) This means, the application filed under Order 9, Rule 13 of the Code would be numbered and then taken up for final disposal. The possibility of further delay in such an event cannot be totally eliminated. To a question put to the learned counsel for the respondent as to why this Court should not allow that application also, if he is consenting for such a course so that further delay in the disposal of the suit can be avoided, the learned Counsel readily agreed. Accordingly, the following order is also passed :