SIVA SUBRAMANIAM Vs. THE COLLECTOR, PERIYAR

JUDGEMENT

(1.) By consent of both the counsel, the Civil Revision Petition itself is taken up for final disposal. The petitioners herein filed the suit, O.S. No. 637 of 1990 on the file of the District Munsif, Erode, Periyar District for declaration of their title. The said suit was decreed ex parte on 24.7.1991. The respondent filed an application, I.A. No. 902 of 1993 on 31.5.1993 for condoning the delay of 646 days in filing the application for selling aside the ex parte decree. The lower court has allowed the application by order dated 16.2.1996 as against which the present Revision has been filed. The contention of the counsel for the petitioner is that the suit has been decreed ex parte on 24.7.1991 and this was communicated to the respondent by the counsel for the petitioner as early as 18.5.1992. The acknowledgments by the Collector and Tahsildar for the receipt of the notice sent by the petitioners had been marked as Ex.P -l and P -2. The lower Court, without considering the same, has proceeded on the basis that by virtue of the ex parte decree, the individuals are not put to loss but, only the public are put to loss and this view of the lower Court may not be correct. When the respondent had been duly communicated and having got the knowledge about the ex parte decree one year earlier to the filing of the application, it is their duty to explain the delay properly. In the absence of any explanation, the delay, especially when the delay is an inordinate one, cannot be condoned. On the contrary, the learned Government Advocate has reiterated what is stated in the affidavit filed in support of the application for condoning the delay before the court below and further contended that neither the intimation of the Govt. Pleader nor the notices sent by the counsel for the respondent had been placed before the Collector, as there was change of the Clerks very often.

(2.) I have carefully considered the contentions of both the counsel. In the affidavit filed by the respondent in support of the application for condoning the delay, it is staled as follows : -

(3.) When the lower court had proceeded on the basis that the loss is to the public, it is the duly of the Government Officers to take the interest of the public. When they failed to do so, the court cannot come to the rescue of either the Government Officers or the public. The Government is also a litigant, so far as the case is concerned, before the Court. If it is a deliberate mistake of some of the Officers or staff in the concerned office, it is open to the Government to lake action against them and recoup the loss caused to the public. It has been so held by the Apex Court in the decision reported in, A.I.R. 1995 S.C. 2237 (Union of India v/s. Rahul Rasgotra) as follows: -