ARTHANARI GOUNDAR Vs. ANUSUYA

JUDGEMENT

(1.) WHETHER the Order declining to condone the delay of 586 days in filing the Petition to set aside the exparte Decree suffers from any perversity or illegality, calling for interference, is the short point arising for consideration in this revision.

(2.) RELEVANT facts are as follows:- 2. 1. The Respondents have filed O. S. No. 891/2002 on the file of Sub Court, Namakkal, [originally O. S. No. 254/ 2001, Sub Court, Sankari], for partition of their 2/3 share in the suit properties against the Petitioner/D-1 and his sons and daughters, who are Defendants 2 to 5 respectively. Revision Petitioner is none other than brother of Respondents/ Plaintiffs. In the suit, the Defendants were duly served with suit summons and were represented by counsel. Inspite of several adjournments, Defendants have not filed Written Statement and hence the suit was decreed exparte on 11. 11. 2003. 2. 2. Respondents have filed I. A. No. 422/2004 for passing Final Decree. In the Final Decree proceedings also, Petitioner was served through Court as well as privately. Other Defendants refused to receive notice through Court and were served by affixture as well as by Paper Publication. Petitioner has filed I. A. No. 835/2000. When the matter was pending for passing Final Decree, Petitioner has filed I. A. No. 838/2005 under Sec. 5 of the Limitation Act, 1963 to condone the delay of 586 days in filing the Petition to set aside the exparte Preliminary Decree. Petitioner has alleged that he was unwell and could not pursue the suit. Pointing out number of adjournments granted for filing Written Statement, and referring to the decisions " 1999(1) LW 739 [M. Balakrishnan Vs. M. Krishnamurthi], 2004(1) LW 406 [Ramasamy Vs. Dhanalakshmi], lower Court dismissed the application finding that the reason for delay has not been satisfactorily explained and no sufficient cause has been shown for the delay.

(3.) SUPPORTING the impugned Order, learned Counsel for the Respondent placed reliance upon 2005 (1)CTC 362 [Kasipalayam Town Panchayat rep. By its Executive Officer Vs. Arumugam and others]; 2001(2)MLJ 734 [Reliance Industries Ltd. , rep. By Reliance Consultancy Services Ltd. , Vs. M. Rajkumari]; 2004(1) LW 406 [A. P. Ramasamy Vs. Dhanalakshmi] and submitted that valid reasonings are given in the impugned Order and the grounds averred in the application to condone the delay are not bonafide. Taking me through dates and events, the learned Counsel further submitted that despite several opportunities, Petitioner has not chosen to file the Written Statement and taking note of the conduct of the Petitioner, Court below has rightly dismissed the Petition filed under Sec. 5 of the Limitation Act, 1963.