S S IYYAPPAN Vs. J P BALASUBRAMANIAN

JUDGEMENT

(1.) THIS revision has been preferred by the petitioner/plaintiff against the order passed by the lower Court condoning the delay of 264 days in filing the restoration petition in I.A.No.1032 of 2003. The lower Court has, after going through the facts and circumstances of the case arising out of the affidavit and counter file on either side, condoned the delay of 264 days on payment of cost of Rs.750/-.

(2.) THE brief facts of the case are as follows:-

(3.) THE learned counsel for the respondent/second defendant would submit in her argument that the respondent/2nd defendant had explained the delay of 294 days in filing the petition to set aside the exparte decree and the lower Court was right in accepting that the petitioner/respondent herein/2nd defendant had explained the delay properly. She would further submit that the respondent/D2 had filed a petition to set aside the exparte order along with the written statement in I.A.No.1989 of 2002 and the same was not considered by the lower Court, but the exparte decree was passed against the respondent/D2 and the respondent/D2 could not go over to his counsel as he did not expect any exparte decree being passed when the written statement was filed along with an application to set aside the exparte order and therefore, the long delay of 294 days has crept in and there was no further four months delay caused, since on the date of filling of the exparte decree set aside application a delay of 294 days alone had been caused. She would also submit that the date of filing of the application to condone the delay should not be calculated for the delay caused in filing the application to set aside exparte decree. She would further submit that the omission to take note of the application filed by the respondent in I.A.No.1989 of 2002 to set aside the exparte order by the lower Court had caused the passing of the exparte decree and no person can be injured by the act of the Court is the solemn principle and therefore, the delay caused in filing the application to set aside the exparte decree was allowed by the lower Court and the Judgment of this Court as cited by the revision petitioner cannot be applied to the facts and circumstances of this case and there is no point to interfere with the order passed by the lower Court and therefore, the revision petition may be dismissed.