The petitioner/defendant has filed this civil revision petition as against the order dated 31.01.2009 in I.A.No.414 of 2008 in O.S.No.836 of 2004 passed by the Learned Additional District and Sessions Judge and Fast Track Court No.1, Coimbatore in dismissing the application filed by the revision petitioner under Section 5 of the Limitation Act praying to condone the delay of 829 days in filing an application to set aside the Exparte Decree dated 18.07.2006 passed in the suit.
2. The trial Court while passing orders in I.A.No.414 of 2008 has inter alia observed that the revision petitioner has projected the Xerox copies of medical records to the treatment meted out to his relatives and further the revision petitioner has not stated that his health has been affected and therefore he has not been in a position to take proper steps at the right time in regard to the conduct of case and as to why he has not filed the originals of the Xerox copies of the medical records has not been made mention of by the revision petitioner and except the reason that his relatives have taken medical treatment no other reason has been ascribed in regard to the delay of 829 days and as a matter of fact, the revision petitioner has not ascribed reasons for each and every day's delay and resultantly dismissed the application.
3. The learned counsel for the revision petitioner/defendant urges before this Court that the trial Court has not taken into account of the fact that the father of the petitioner/defendant has expired recently and his mother who is a cancer patient has been under treatment in the Ramakrishna Hospital Coimbatore, and further that the revision petitioner has an unmarried sister aged about 45 years and suffering from Hypertension etc., and moreover the wife of the revision petitioner is a psychiatrist patient and as a male member and kartha of the family he has been looking after the family and therefore he has not been in a position to contact his counsel and attend to his case and added further, the communication sent by his counsel has not reached the petitioner and therefore, he has not attended the Court on 18.07.2006 and as a result, an exparte decree has been passed by the trial Court and in a suit for specific performance filed by the respondent/plaintiff the revision petitioner/defendant has tangible and valid defence an opportunity to conduct the case and a judgment copy rendered by the trial Court on merit and in any event the reasoning of the trial Court in dismissing the application is an erroneous one both in Law and on facts and therefore, prays for allowing the civil revision petition in the interest of justice.
4. Per contra the learned counsel for the Respondent/Decree holder submits that the civil revision petitioner/defendant has not appeared before the trial Court on numerous occasions and the revision petition/defendant has been giving ample opportunities to cross-examine the respondent/plaintiff and in fact the respondent/plaintiff has paid initially a sum of Rs.3,00,000/- to the revision petitioner/defendant as advance and later on 21.08.2003 an amount of Rs.2,50,000/- has been received and the remaining balance sale consideration has been deposited in the Court on 09.08.2006 and in fact the revision petitioner/defendant has not assigned cogent and proper reasons in regard to the condonation of delay and therefore, prays for dismissing of the civil revision petition.
5. This Court has heard the contentions advanced by both the counsels and noticed the same. It is to be noted that a Court of law cannot adopt a pedantic approach. Instead it has to adopt a purposeful and meaningful approach while dealing with the Section 5 condonation application. It is true that if Section 5 application under Limitation Act is allowed then the maximum thing that can happen is that the revision petitioner/defendant can be allowed to take part in the conduct of the main case and the cause can be decided on merits after providing opportunities to respective sides.
6. As far as the present case is concerned the revision petitioner/defendant has come out with a specific plea that his father has expired recently and his mother who is a cancer patient has been under treatment in the Ramakrishna Hospital Coimbatore, and counting her days,and has an unmarried sister aged about 45 years suffering from Hypertension etc., and moreover the wife of the revision petitioner is a psychiatrist patient and therefore as head of the family he has to look after the family welfare and as such he has not contacted his counsel to attend to his case. But in the main case a proof affidavit has been filed by the respondent/plaintiff and it is evident that numerous opportunities have been given to the respondent/plaintiff to cross-examine the plaintiff side witness and that has not been availed by the revision petitioner and therefore, the trial Court has been left with no option but to pass an exparte decree as early as on 19.07.2006. Therefore, it is quite crystal clear that sufficient and adequate opportunities have been provided to the revision petitioner/defendant to cross-examine the plaintiff/PW1 even though the revision petitioner has come out with a plea that his family members have been suffering from certain illness and moreover, his wife being a psychiatrist patient and that as a male member and kartha of the family he has been looking after the family etc., yet this Court is of the considered view that when the main case has been posted for cross-examination of PW1 the revision petitioner/defendant has not utilised the repeated opportunities made to cross-examine the PW1 and looking at from any angle the reasons ascribed by the revision petitioner in his affidavit in I.A.No.414 of 2008 do not inspire the confidence of this Court in regard to its acceptance and in short the revision petitioner has not made out a sufficient and acceptable cause in regard to the condonation of delay of 829 days in projecting I.A.No.414 of 2008 and ultimately the civil revision petition fails.
7. In the result the Civil Revision Petition is dismissed leaving the parties to bear their own costs. The order passed by the trial Court in I.A.No.414 of 2008 is affirmed by this Court for the reasons ascribed in this revision. Considering the facts and circumstances of the case the parties are directed to bear their own costs in this revision. Consequently, related M.P. No.1 of 2009 is closed.
prm To The Learned Additional District and Sessions Judge and Fast Track Court No.1, Coimbatore