This civil miscellaneous petition has been filed to condone the delay of 144 days in preferring the civil revision petition.
2. It is found that the first respondent had instituted the suit for partition, in O.S.No.39 of 2010, on the file of the Subordinate Court, Virudhunagar. It is further found that the petitioner / first defendant had been set ex parte in the suit and accordingly, a preliminary decree had come to be passed in the suit on 30.04.2013. According to the petitioner / first defendant, on account of his illness and old age, he was unable to file necessary application to set aside the ex parte decree passed against him in time. Therefore, he had also preferred an application to condone the delay of 454 days in filing the application to set aside the said ex parte decree. According to him, the Court below, on an erroneous approach of the matter, dismissed the application for the condonation of the delay. Aggrieved over the same, it is stated that he has preferred the civil revision petition and according to the learned counsel for the petitioner, inasmuch as there is a delay of 144 days in filing the civil revision petition, the present civil miscellaneous petition has been preferred to condone the said delay.
3. The reason given by the petitioner for the delay in filing the civil revision petition is that he had requested his counsel to apply for the certified copy of the fair and decreetal orders of the Court below so as to enable him to prefer the civil revision petition immediately, but according to him, his counsel by oversight did not make the necessary application immediately and only when he had met his counsel on 16.09.2016, the said fact had come to his knowledge and accordingly, thereafter, made necessary arrangements to file the copy application for obtainment of the fair and decreetal orders and hence, the delay had occurred in filing the civil revision petition.
4. The said petition laid by the petitioner is stoutly resisted by the first respondent contending that the petitioner knowing very well about the institution of the suit by the first respondent had chosen to remain ex parte and thereafter, had come forward with an application to set aside the ex parte decree with an application to condone the delay of 454 days, after coming to know that the first respondent had moved the Court for passing the final decree in the suit and accordingly, the Court below had rejected the application holding that it is a dilatory tactics adopted by the petitioner to delay the passing of the final decree and thus, according to the first respondent, the final decree having been since passed and the first respondent has also paid further amounts in continuation of the same with reference to the same, the present application laid by the petitioner to condone the delay of 144 days in preferring the civil revision petition, without any acceptable reason, is not not entitled for acceptance and hence, the same is liable to be dismissed.
5. It is found that it is not the case of the petitioner that he is not aware of the suit instituted by the first respondent for partition. In such view of the matter, as rightly put forth by the learned counsel for the first respondent, the petitioner should have endeavoured to contest the suit laid by the first respondent with fill vigor, however, it is found that he has left the matter to go for ex parte. Thereafter, with a delay of 454 days, he had come forward an application to set aside the ex parte decree. Meanwhile, it is found that the first respondent has moved the Court for passing the final decree and accordingly, it is seen that as rightly argued by the learned counsel for the first respondent, with a view to delay the passing of the final decree, the petitioner hasving preferred the above said application, the Court below had dismissed the application. It is, thus, found that the petitioner had not been diligent in prosecuting the case and accordingly, it is found that he has been delaying the proceedings one way or the other.
6. Now, according to the petitioner, aggrieved over the dismissal of the delay condonation application, he has decided to file the civil revision petition pertaining to the same. If the petitioner had been earnest in contesting the suit laid by the first respondent, as rightly argued by the learned counsel for the first respondent, he would have seen that the civil revision petition is filed properly. However, the only reason given for the delay is that though he had instructed his counsel to obtain the certified copy of the orders passed by the Court below, inasmuch as his counsel had not applied for the orders in time, the delay had occurred. The said reason is not acceptable. Despite the same the petitioner had not cared to place any material to hold that he had given instructions to his counsel to apply for the certified copy of the orders of the Court below immediately and it is only the counsel, who had failed to apply for the same in time. At least, to show his bona fide, the petitioner should have obtained the necessary affidavit from his counsel concerned stating that it was his fault in not applying for the certified copy of the impugned order, though he had been instructed to apply for the same by the petitioner. However, with reference to the same, the petitioner has not cared to file the affidavit of the Advocate concerned. When the said reason for the condonation of the delay has been stoutly repudiated by the first respondent and when there is no material on record to show that the said reason is true, it is found that the petitioner has come forward only with a false reason for the delay and hence, the same is not entitled for acceptance.
7. Considering the fact that right from the inception of the suit, the petitioner is not eager in prosecuting the case, accordingly, it is found he had left the matter to go for ex parte and even thereafter, he has not taken any step to set aside the ex parte decree passed against him in time and on the other hand, as a delay of 454 days had occurred in filing the necessary application with reference to the same, he has filed the said application. The said application having been rejected, even thereafter, the petitioner is found to have not prosecuted the case properly and again had taken his own time in filing the present civil revision petition and accordingly, there occurred the delay of 144 days. This conduct of the petitioner would go to show that his intention is only to procrastinate the matter endlessly so as to cause hardship to the first respondent. Accordingly, the cause being not substantiated by any acceptable reason, when the reason adduced by the petitioner for the condonation of the delay has been refuted by the first respondent holding that it is nothing but a dilatory tactics adopted by the petitioner to cause hardship to her, it is found that the reason given by the petitioner for the condonation of the delay cannot be termed as a sufficient cause and hence, the same cannot be accepted. In such view of the matter, the decision relied upon by the learned counsel for the petitioner reported in (2013) 12 SCC 649 [Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and others] would not be applicable to the facts and circumstances of the case at hand as no sufficient cause at all has been given by the petitioner for the condonation of the delay and the cause pleaded also has not been established by the petitioner prima facie at least in any manner.
8. In the light of the above discussions, the civil miscellaneous petition preferred by the petitioner is not entitled for acceptance and it is, therefore, dismissed. Consequently, C.R.P.(MD) No.SR46848 of 2016 is rejected.
To:
The Subordinate Judge, Virudhunagar..