K ABDUL RAHMAN SAHIB Vs. NAZIMUNNISSA

JUDGEMENT

(1.) THESE revisions are directed against the Order of District Munsif Court, Vellore, dismissing the applications I.A.Nos.412, 413/2003 in O.S.No.1490/1994, declining to condone the delay in filing the restoration Petition and to restore the Petition filed under Or.9 R.13 CPC.

(2.) FACTUAL background of the case are as follows:- 2.1. The Respondent/Plaintiff filed O.S.No.1490/1994 for partition. Defendants 2 and 4 have entered appearance and filed their Written Statement. Because of their non-appearance, they were set exparte and Preliminary Decree was passed on 19.02.2001. 2.2. Petitioner/D-4 filed I.A.No.208/2001 under Or.9 R.13 CPC to set aside the exparte Decree passed on 19.02.2001. That application was allowed on condition to pay cost of Rs.100/- on or before 30.11.2001. Since cost was not paid, I.A.No.208/2001 was dismissed on 30.11.2001. 2.3. Respondent/Plaintiff filed I.A.No.80/2002 for Final Decree. In the said application, the Petitioner/D-4 entered appearance and took time for filing counter. After receiving notice in the Final Decree application, the Petitioner filed I.A.Nos.412 and 413/2003 for setting aside the Order in I.A.No.208/2001 along with application under Section 5 of the Limitation Act to condone the delay of 266 days in filing restoration application. The Respondent/Plaintiff resisted the applications. Finding that no satisfactory reason is given for the delay, the trial Court dismissed both the applications which are challenged in these Revision Petitions.

(3.) THE main contention of the Petitioner is, under Section 148 CPC, even after expiry of the period already granted, the Court has jurisdiction to extend the period subsequently. THE learned Counsel placed reliance upon the decision of the Division Bench reported in 2006(2) MLJ 729. In the said decision, in a referred matter, observing that exercising power under Section 148 CPC, Court has power to extend the time beyond the stipulated period when sufficient cause exist, Division Bench of this Court has held as under:-