GOMATHI AMMA Vs. MADHUSOODANAN NAIR

JUDGEMENT

(1.) EIGHTH defendant in O.S.No. 192 of 1992 on the file of Additional District Munsif, Kuzhithurai aggrieved against the order in I.A.No. 109 of 1994 wherein the court below has dismissed his petition filed under Sec.5 of the Limitation Act, has approached this Court by way of the present revision.

(2.) IN the affidavit filed in support of I.A.No. 109 of 1994 the petitioner herein submitted that she came to know that an ex parte decree was passed against her on 23.9.1992 only on 20.11.1993 through her present advocate. She further contended that for the last 30 years she is residing at Bangalore and 1982 onwards she was suffering from rheumatism and due to the said ailment she could not move freely. IN those circumstance, she did not go over to Kuzhuthirai to ascertain the position of the case. Only on 20.11.1993 she came to know about the ex parte decree passed against her on 23.9.1992 through her present counsel and immediately she filed the present petition within 30 days which is from the date of her knowledge.

(3.) IN our case also, except the production of the medical certificate, the petitioner herein has not explained the delay by examining herself. A reading of O. 9. Rule 13, C.P.C. clearly shows that the applicant must satisfy the Court that the summonses were not duly served or she was prevented by any sufficient cause from appearing when the suit was called on for hearing. IN this case, as already stated there is no averment that summons was not served on her. Failure to adduce evidence for non-appearance, the vague allegation that she was ill and mere production of medical certificate are not sufficient to prove her illness unless the party gets into the box and speaks about the same Admittedly in our case the petitioner has not entered the box and spoken in support of the medical certificate. IN those circumstances, the decision referred to in the above case as well as the other decision of the learned Chief Justice reported in Arukkani Ammal v. Guruswamy, (1987)1 M.L.J. 32: 100 L. W. 707 are squarely applicable to our case. Since we are concerned with the reason or reasons for condoning the delay in filing petition to set aside the ex parte decree, I am not discussing the merits of the case as argued by the learned counsel for the petitioner.