V AMUDHA Vs. S A ARUMUGHAM

JUDGEMENT

(1.) FIRST plaintiff in O.S.No.552 of 1989 on the file of the I Additional District Munsif, Erode is the revision petitioner. The above suit was filed to declare that the plaintiffs are the absolute owners of the suit properties and the defendants do not have any right to create encumbrance over the same.

(2.) I do not want to go into the merits of the case, since the revision petition is against an order condoning the delay of 2569 days in I.A.No.1470 of 1997. The above suit filed by the plaintiffs was decreed and the defendants were set ex parte and an application was filed to have the ex parte decree set aside. There is a delay of nearly 2600 days and the same was sought to be explained by filing the said application. In the affidavit filed in support of the said application, it is stated that the first respondent herein engaged the counsel on 14.6.1989, but thereafter, he met with an accident and fell ill and continued to be bed ridden till 5.9.1997. He further averred that he was under medical advice and under complete rest and not to move about of his residence. It is further averred that the plaintiffs approached an Ex.M.L.A to settle the matter and through him, he came to know that the ex parte decree was passed on 27.7.1990. It is only because of his illness, he could not file an application earlier and also he did not have the knowledge of the ex parte decree. A detailed counter has been filed on behalf of the petitioners herein. For the purpose of the said application, the petitioners as well as respondents were examined. After considering the evidence, the lower court held that interests of justice require that the ex parte decree should be set aside. For the said purpose, the lower court had also taken note of the statement of the plaintiffs wherein the first plaintiff said that she has no objection in setting aside the ex parte decree. The lower court awarded costs of Rs.1,000 to the plaintiffs, while allowing the said application with a further direction that if the said sum is not paid on or before 15.10.1998, the said application shall stand dismissed. The said order is challenged in this revision petition.

(3.) APART from this, the lower court also has taken into consideration that the interests of justice require that the delay must be condoned. A discretion was exercised by the lower court on application of mind. Unless the petitioner shows that they are put to manifest injustice or hardship, the discretion exercised by the lower court is not liable to be revised by this Court. When the petitioner herself herself has no objection in restoring the suit, she cannot even complain that a wrongful order was passed by the lower court. In spite, of the said statement by the first plaintiff, the lower court ordered a cost of Rs.1,000 to her. The lower court has taken into consideration the interests of justice and the rights of the parties were also protected.