SUBBURAMAN Vs. SELVI

JUDGEMENT

(1.) The petitioner, who failed in his attempt to get the delay of 726 days in filing an application to set aside the exparte decree passed by the trial Court condoned has come up with this Civil Revision Petition.

(2.) The suit in O. S. No. 30 of 2004 was laid by the first respondent for partition and separate possession of her 6/20th share in the suit properties. The petitioner, who had purchased a portion of the property in the year 1999 from one Subburaman, was impleaded as 34th defendant in the said suit. Since the petitioner did not file any written statement, he was set exparte and the suit came to be decreed on 3.1.2006. Subsequently, a final decree application has also been filed and the same was allowed on 26.9.2008 and a final decree came to be passed on the said date. The petitioner filed the application on 7.6.2011 seeking to condone the delay of 726 days in filing an application to set aside the exparte decree, dated 3.1.2006. In the affidavit filed in support of the application, it is claimed that the petitioner was never a resident of Puthukulam village and he never engaged a lawyer in the suit. According to him, the plaintiff/first respondent had purposely given a wrong address and wrong particulars regarding his community and created records to show that he has refused to receive the notice when it was sought to be served on him. He would also allege that he came to know about the exparte decree passed against him only on 7.11.2010 and hence, he has made out sufficient cause for condonation of delay.

(3.) This application was opposed by the first respondent contending that the petitioner having engaged a counsel during trial cannot claim that he did not have knowledge of exparte decree till 7.11.2010. The claim of the petitioner that his address was wrongly given was also denied. The Court below, on consideration of the allegations in the affidavit and the counter affidavit concluded that the petitioner having engaged an advocate during trial cannot now seek to contend that he never engaged a lawyer and therefore, he was not aware of the decree. The trial Court also faulted the petitioner for giving the number of days delay as 720 days despite the fact that the application seeking to set aside an exparte decree was filed only in the year 2010 that is nearly 4 1/2 years after the passing of the exparte decree. On the above conclusions, the trial Court dismissed the application. Aggrieved, the petitioner has now come up with this Civil Revision Petition.