ADHIKESAVAN Vs. KALAVATHI

JUDGEMENT

(1.) THE order passed in I.A.No.1454 of 2007 in O.S.No.367 of 2004 on the file of the Court of District Munsif, Madhuranthakam is under challenge. THE said petition was filed under Section 5 of the Limitation Act to condone the delay of 1096 days in filing a petition to set aside the exparte decree. Admittedly, the petitioner is the brother of the respondent. THE respondent is the sister of the petitioner, who had filed a suit in O.S.No.367 of 2004 for delivery of possession of her 1/2th share in the plaint schedule property basing her claim under a Will. THE reasoning stated in the affidavit to the application in I.A.No.1454 of 2007 for condoning the delay is that due to his illness, he could not contact his counsel and that on 16.6.2005, when the matter was posted for filing written statement, his counsel has failed to inform the date of hearing for filing written statement and hence he was set exparte on 16.6.2005.

(2.) THE learned counsel appearing for the revision petitioner would rely on a decision reported in N.Balakrishnan-vs- M.Krishnamurthy (1998(II) CTC 533) and contended that if proper explanation for the delay is shown to the Court then it is the duty of the Court to condone the delay and it is immaterial how long the delay was and that the rule of Limitation is not meant to destroy the rights of the parties, if sufficient cause is shown by the petitioner to condone the delay. THE facts of the said ratio is similar to the preset facts of the case. THE petitioner/plaintiff in the said suit has filed a petition to restore the suit which was dismissed for default on 17.2.1993. After receipt of the notice in the Execution Proceedings, he had approached his advocate on 5.7.1995 . He had signed the vakalatnama for resisting the suit, besides making a payment of Rupees Two Thousand towards advocate's fees and other incidental expenses. But the advocate did not do anything in the court even thereafter. On 4.8.1995, the execution warrant was issued by the Court and he became suspicious of the conduct of his advocate and hence rushed to the Court from where he got the disquieting information that his application to restore the suit which was dismissed for default as early as on 17.2.1993 itself and thereafter he came to know that his advocate had left the profession. Hence he filed the present application to restore the suit which was dismissed on 17.2.1993. THEre was a delay of 883 days in filing a petition to restore the suit. Hence, he has filed a petition under Section 5 of the Limitation Act to condone the delay of 883 days in filing a petition to restore the suit. THE relevant observations in the said ratio are relevant for the purpose of deciding this revision are as follows: