The respondent / plaintiff has laid the suit against the petitioner / defendant for specific performance. It is found that the petitioner / defendant has suffered an ex parte decree in the above said suit on 05.01.2005. Seeking to set aside the ex parte decree passed against him, the petitioner / defendant has moved an application, under Order IX Rule 13 of the Code of Civil Procedure. Inasmuch as there is a delay of 244 days in filing the said application, it is found that the petitioner / defendant has preferred I.A.No.2 of 2006 to condone the said delay.
2. For the condonation of the delay, the reasons given by the petitioner / defendant is that on account of the fight / clash between him and his son, a criminal case was registered against him and he was, consequently, lodged in jail for two months and in the said fight / clash, he has sustained injuries in his left arm and taking treatment laying in bed for more than ten months and thereafter only, he was able to contact his Lawyer and came to know about the ex parte decree and hence, the delay had occurred and therefore, prayed for the condonation of the same.
3. The above application preferred by the petitioner / defendant was stiffly resisted by the respondent / plaintiff contending that the reasons given by the petitioner / defendant for the condonation of the delay are imaginary, false and made for the purpose of the application and the petitioner / defendant has deliberately left the suit to go for ex parte and after the obtainment of the ex parte decree passed in the suit, the respondent / plaintiff has levied execution proceedings against the petitioner / defendant and the petitioner / defendant, after entering appearance in the execution petition, has chosen to lay the present application and hence, sans acceptable cause, the application is not entitled for acceptance and liable to be dismissed.
4. The Court below, on a consideration of the rival contentions put forth by the respective parties, finding that the reasons given by the petitioner / defendant for the condonation of the delay being not substantiated with acceptable material whatsoever even after the same had been strongly repudiated by the respondent / plaintiff and finding that the petitioner / defendant, after entering appearance in the execution petition levied by the respondent / plaintiff, has chosen to lay the present application, for the reasons aforestated, discountenanced the application preferred by the petitioner / defendant. Impugning the same, the present civil revision petition has been filed.
5. It is found that the petitioner / defendant has suffered an ex parte decree in the suit laid by the respondent / plaintiff for specific performance on 05.01.2005. Inasmcuh as there is a delay of 244 days in filing the application to set aside the ex parte decree, it is found that the petitioner / defendant has preferred I.A.No.2 of 2006 to condone the delay. The reasons given by the petitioner / defendant for the condonation of the delay is that on account of the fight / clash between him and his son, a criminal case has been registered against him and he was consequently lodged in jail for more than two months and in the said fight / clash he has sustained injuries in his left arm and taking treatment laying in bed for more than ten months and thereafter only, he was able to contact his Advocate and came to know about the ex parte decree and hence, the delay had occurred. The said reasons projected by the petitioner / plaintiff were stoutly resisted by the respondent / plaintiff. According to the respondent / plaintiff, the petitioner / defendant having found that he has no valid defence to resist the case of the respondent / plaintiff left the matter to go for ex parte and after the respondent / plaintiff has levied the execution proceedings, the petitioner / plaintiff, after entering appearance in the execution petition, had chosen to lay the application without any sufficient cause and according to her, only with a view to defeat her right from enjoying the fruits of the decree, the application has been preferred by the petitioner / defendant and hence, the same is liable to be dismissed.
6. As rightly determined by the Court below, when the petitioner / defendant has cited some reasons for the condonation of the delay and when the said reasons are stoutly resisted by the respondent / plaintiff, it is for the petitioner / defendant to establish the same by adducing substantial materials at least prima facie. However, with reference to the same, not even a scrap of paper has been placed by the petitioner / defendant to enable the Court to accept the same. If really there had been a fight / clash between the petitioner / defendant and his son and consequently, he had been lodged in jail in the wake of the registration of the criminal case against him, definitely, records pertaining to the same would be available and if the said cause is true, the said records would have been placed for the consideration of the Court below. However, for the reasons best known to the petitioner / defendant, the said records are not placed. Further, according to the petitioner / defendant, in the clash / fight between him and his son, he has sustained injuries in his left hand and taking treatment for more than ten months laying in bed. With reference to the above said cause also, as rightly argued by the learned counsel for the respondent / plaintiff, ample records would be available. To sustain the above said case also, the petitioner / defendant has not cared to submit the above said records for the consideration of the Court. This would only go to show that inasmuch as the above said cause is not true, the petitioner / defendant is unable to place any material with reference to the same. It is, thus, found that as seen by the Court below also, no proof whatsoever has been placed by the petitioner / defendant to sustain the cause pleaded by him for the condonation of the delay. This would only go to show that as the reasons projected by the petitioner / defendant for the condonation of the delay are false, he is unable to substantiate the same with acceptable and reliable material and therefore, it is found that the Court below had rightly discountenanced the application preferred by the petitioner / defendant.
7. It is further found that as rightly argued by the learned counsel for the respondent / plaintiff, only after the respondent / plaintiff had initiated execution proceedings against the petitioner / defendant, it is found that the petitioner / defendant had woken up and chosen to file the present application. Even, it is found that he has not come forward with the said application immediately on coming to know about the execution proceedings preferred by the respondent / plaintiff. This would only go to show that the petitioner / defendant is not interested in resisting the case of the respondent / plaintiff.
8. It is further found that the civil revision petition laid by the petitioner / defendant impugning the order of the Court below has also not been filed in time. It is seen that with a delay of 253 days, the civil revision petition has come to be laid and this conduct of the petitioner / defendant would only go to show that he has been taking his own time in preferring applications one after the other without any rhyme or reason and as rightly determined by the Court below, the main aim of the petitioner / defendant is nothing but to delay the execution proceedings laid by the respondent / plaintiff one way or the other so as to defeat the rights of the respondent / plaintiff to enjoy the fruits of the decree passed in her favour. No doubt, the delay condonation petition in filing the revision has been condoned by this Court on terms. But, the above said fact has been adverted only to show the conduct of the petitioner / defendant in not prosecuting the matter diligently and properly.
9. In the light of the above discussions, it is found that the Court below has rightly rejected the application preferred by the petitioner / defendant and the impugned order of the Court below does not call for any interference from this Court.
10. Resultantly, the civil revision petition is dismissed with costs. Consequently, connected miscellaneous petition is closed.
To:
The Principal Subordinate Judge, Trichirappalli.
.