This Revision has been directed against the order of dismissal of the application seeking condonation of delay of 184 days in filing the application to set aside the exparte decree passed by the lower Court.
2.The respondent herein, as plaintiff, filed the suit in O.S.No.470 of 1998 against the petitioner herein/defendant seeking for specific performance of the sale agreement. Since the petitioner herein/defendant did not appear for the trial on 2.12.2004, the said suit was decreed exparte by the trial Court against the defendant. The petitioner herein/defendant filed a petition in I.A.No.587 of 2007 seeking for condonation of delay of 184 days in filing a petition to set aside the exparte decree. The trial Court, after hearing both sides, has dismissed the said application, which necessitated the petitioner to prefer this revision before this Court.
3.The averments in the affidavit to the delay condonation application filed by the petitioner would run as follows:- The respondent herein/plaintiff had filed the suit in O.S.No.470 of 1998 against the petitioner herein/defendant seeking for specific performance of the sale agreement. The petitioner/defendant had filed the written statement in the suit and the said suit was posted on 02.12.2004 for trial. The petitioner was suffering from hypertension and chest pain from 30.11.2004 and he was aged about 47 years and was taking treatment from Dr.D.J.X.Chandran. The petitioner was advised to take complete bed rest. Hence, the petitioner could not meet his counsel and could not also attend the Court on 02.12.2004. The petitioner did not appear before the Court on 02.12.2004. Hence, he was called absent and set exparte and an exparte decree was passed against the petitioner. The petitioner is having good defence in the case. The absence of the petitioner before the Court on 02.12.2004 was neither wanton nor wilful. The medical certificate issued by the Doctor was produced before the Court by the petitioner. The petitioner would state that unless the said exparte decree is set aside, the petitioner will be put to heavy loss and hardship. The petitioner was recovered from ill-health only on 01.07.2005 and immediately he met his counsel and came to know about the passing of the exparte decree against him and then he filed an application to set aside the exparte decree. However, in the meantime, a delay of 184 days caused in filing the application to set aside the exparte decree. Hence, the petitioner had filed I.A.No.587 of 2007 seeking for condonation of delay of 184 days in filing the application to set aside the exparte decree.
4.The respondent herein/plaintiff filed a written statement in the condonation of delay application contending as follows:- The allegations that the petitioner was suffering from hypertension and chest pain and was undergoing treatment and therefore, he could not attend the Court on 2.12.2004 are all false. It is also not correct to say that the petitioner recovered from the illness only on 1.7.2005 and thereafter he came to know about the exparte decree passed against him. The petitioner even as per the allegations in the affidavit filed by the petitioner, the petitioner was aware of the fact that the suit was listed for trial on 02.12.2004, but curiously he has not taken any steps to know the stage of the suit for about six months after the suit was decreed against him. While considering the alleged illness, the petitioner could not have been confined to bed for a period of six months. The petitioner, having knowledge of the fact that the suit was listed for trial, has deliberately and wantonly allowed the suit to be decreed exparte and now, has come forward with the application containing false and imaginary allegations. The respondent would further state that the petitioner has entered into an agreement of sale with this respondent as early as 21.4.1995 to sell the suit property for Rs.1,00,000/- and received an advance of Rs.75,000/- on the date of the agreement itself. The petitioner in the earlier occasion on 5.3.2001 has allowed the suit to be decreed exparte for non-filing of the written statement and the respondent as per the directions of the Court has deposited the balance of sale consideration of Rs.25,000/- on 10.04.2001 and thereafter, the petitioner had filed an I.A.No.659 of 2001 to set aside the exparte decree passed against him and the same was allowed on 17.04.2003. Again, the petitioner has once again deliberately and wilfully failed to appear before the Court when the suit was listed for trial on 02.12.2004 and hence the suit was decree exparte once again against the petitioner. The petitioner has not given any valid reason to condone the delay of 184 days in filing the application to set aside the exparte decree passed against him. The respondent would further contend that the petitioner with a view to drag on the proceedings and to harass the respondent has filed the present vexation application. Hence, he prayed for the dismissal of the application.
5.Heard Mr.G.Rajan, learned counsel for the petitioner and Mr.K.Govi Ganesan, learned counsel for the respondent.
6.The learned counsel for the petitioner would submit in his argument that the lower Court had not considered the facts and circumstances but it had erroneously dismissed the application without any application of mind. He would further submit that the petitioner/defendant was seriously affected by hypertension and was advised by the Doctor to take bed rest for more than a month and the medical certificate to that effect produced by the petitioner was not considered by the lower Court. The lower Court ought to have allowed the application to condone the delay of 184 days and also the application to set aside the exparte decree. He would also submit that the lower Court had not considered the judgment cited on either side and it has passed the order without exercising the judicial discretion and the application for condonation of delay was arbitrarily dismissed by the lower Court. Therefore, the order passed by the lower Court may be set aside and the revision may be allowed, thereby the application to condone the delay of 184 days in filing the application to set aside the exparte decree and application to set aside the exparte decree may be allowed.
7.The learned counsel for the respondent Mr.G.Rajan would submit in his argument that the lower Court had considered that the petitioner was not present on the date of trial and therefore, it had not accepted the medical certificate produced by the petitioner since it was felt by the lower Court that the absence of the petitioner was wilful. Therefore, the lower Court had dismissed the said petition. He would further submit that the petitioner/defendant was not prompt in attending the Court and the case was pending for more than 10 years and therefore the lower Court had exercised its discretion not to allow the petition. He would, therefore, request the Court not to interfere with the orders passed by the lower Court and the revision may be dismissed.
8.Considering the arguments advanced on either side, I could see that the revision petitioner has filed the application before the lower Court for setting aside the exparte decree passed against him and the application to condone the delay of 184 days in filing the application to set aside the exparte decree. The reason stated by the petitioner before the lower Court was that he was suffering from hypertension and therefore, he could not participate in the trial on the date, when the case was posted in the list and since the Doctor had advised him to take bed rest, and he could not also meet his counsel since he took rest for more than a month and therefore, there has been a delay of more than 184 days caused. On a careful perusal of the order passed by the lower Court, I could see that the lower Court had not assigned any reason for not rejecting the medical certificate produced by the petitioner. Despite the lower Court had mentioned several judgments of this Court produced on either side, it had not discussed those judgments and had applied those principles for making the decision in the said petition. Since there was no valid reason assigned by the lower Court in not accepting the medical certificate produced by the petitioner, I find that the lower Court was taken away by the fact that the suit was pending for more than 10 years. The lower Court must see the reason for the delay assigned by the parties and it should not be carried away by the other circumstances which have to be considered only on other occasions. By virtue of the order of lower Court in rejecting the plea of condonation of delay, the defendant could not proceed with the case as there was no opportunity availed to him. However the time taken for getting this order would make the case still pending and the disposal of the suit is still delayed. Therefore, I am of the opinion that the medical certificate produced by the petitioner ought to have been accepted by the Court. The judgment of the Hon'ble Apex Court is between N.Balakrishnan Vs. M.Krishnamurthy reported in 1998 (7) SCC 123 would be the answer in this situation. The relevant passage would run as follows:-
"A Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari (AIR 1969 SC 575) and State of W.B. Vs. Administrator, Howrah Municipality (1972) 1 SCC 366."
From the aforesaid Judgment, we could see that the petitioner must be given an opportunity to participate in the trial and the application to condone the delay of 184 days in filing the application to set aside the exparte decree ought to have been accepted and allowed. Therefore, it has become necessary for this Court to interfere with the order passed by the lower Court. However, the petitioner, who had caused inconvenience to the respondent, should be imposed with payment of cost.
9.In fine, the petitioner is directed to pay a sum of Rs.1,000/- towards cost to the respondent within two weeks from the date of receipt of copy of this order. On such payment the application in I.A.No.587 of 2007 seeking for condonation of delay of 184 days and the application to set aside the exparte decree shall be allowed. In default to pay the said amount, the order passed by this Court in this Revision shall stand cancelled without any further reference to this Court. Further, in the event of restoration the lower Court is directed to continue the trial of the case by framing issues and to dispose of the case within a period of four months from the date of setting aside the exparte decree.
With the above observation, this Revision is ordered.
ssv To, The Sub-Court, Tirupur