The petitioner/first defendant has filed this Civil Revision Petition as against the order dated 23.03.2004 in I.A.No.23 of 2004 in O.S.No.130 of 1997 passed by the learned Subordinate Judge, Karur in dismissing the application with costs praying to condone the delay filed under Section 5 of the Limitation Act.
2. The trial Court, while passing the orders in I.A.No.23 of 2004 in O.S.No.130 of 1997 has come to the conclusion that the reasons ascribed in regard to the delay in filing the application to set aside the ex-parte decree are not believable etc., and therefore, the same cannot be condoned.
3. In I.A.No.23 of 2004 in O.S.No.130 of 1997 filed by the revision petitioner/first defendant before the trial Court, it is mentioned that the first hearing of the main suit in O.S.No.130 of 1997 has been posted on 08.08.1997 and that he has entered appearance through his counsel and since he has fallen sick frequently, he has not met his counsel and also, he has been handicapped to file the written statement and after check-up it has come to light that he has jaundice and therefore, he has taken treatment and that his advocate had advised him to take three months bed rest and he has been severely affected by the disease of jaundice and that he has taken treatment from Dr.V.V.Ramachandran, Narasimmapuram South, Karur, and that on 13.11.2001, a decree has been passed against him alone and when he has met his counsel, he came to know that an ex-parte decree has been passed on 13.11.2001 and his non- appearance as well as non filing of written statement before the trial Court is neither wilful nor wanton but due to the aforesaid reasons which is beyond his control and therefore, prays for allowing the application to set aside the ex- parte decree passed against him on 13.11.2001 after countenance of delay.
4. In the counter filed by the respondent/plaintiff, it is mentioned that after the decree being passed on 13.11.2001 in O.S.No.130 of 1997, the respondent/plaintiff has filed E.P.No.194 of 2002, in which notice has been served on the revision petitioner/defendant and he had also entered appearance and after dragging the proceedings for several adjournments without filing counter, the revision petitioner/defendant has come forward with the instant petition to condone the delay etc., and that the delay in filing the present application to set aside the ex-parte decree is an unreasonable one prompted by malafide intentions.
5. 'The term sufficient cause has to be liberally construed under the Limitation Act and a Court of law while dealing with the application to condone the delay and to adopt a liberal approach and not a mandate approach for the considered opinion of this Court. By allowing the condone delay application, the highest thing that can happen is that an opportunity will be given to a party/litigant to contest his main case on merits of-course the Court can hear the merits of the matter by providing adequate particulars to parties. In short, a Court of law will have to deliver substantial justice to the parties, overriding the technicalities, in the prosectual justice system'.
6. There is no presumption that delay has occasioned deliberately, or on account of malafides or on account of culpable negligence. Moreover, the Judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
7. Inasmuch as a liberal view is to be taken by a Court of law in dealing with an application to condone the delay and that in the instant case on hand, since the revision petitioner/first defendant has come out with a plea that he has been suffering from jaundice and when he has met his counsel who has advised him to take three months bed rest etc., this Court in the interest of justice to provide an opportunity to the revision petitioner, sets aside the order of the trial Court in I.A.No.23 of 2004 in O.S.No.130 of 1997 and resultantly, allows the Civil Revision Petition to promote substantial cause of justice. However, this Court orders that the revision petitioner/first defendant should pay a costs of Rs.1000/- (Rupees One Thousand Only) to the respondent/plaintiff's counsel directly on or before 10.06.2009 failing which the petition will stand dismissed automatically without any further reference.
8. Considering the facts and circumstances of the case, there shall be no order as to costs. Since the suit is of the year 1997, the trial Court shall receive the written statement of the revision petitioner/first defendant and to proceed further in regard to the conduct of the main case and to dispose of the same within a period of 45 days from the date of receipt of a copy of this order. The parties are directed to lend their co-operation to the trial Court in regard to the completion of the proceedings and it is made clear that the revision petitioner/first defendant shall not seek adjournments before the trial Court on any score and the trial Court is directed to proceed with the conduct of the trial Court of the main case preferably on day to day basis and to report compliance to this Court without fail.
9. With the aforesaid directions, this Civil Revision Petition is disposed of. Consequently, connected Miscellaneous Petition is closed.
DP To
1.The Subordinate Judge, Karur.
2.The Section Officer (Judicial), Madurai Bench of Madras High Court, Madurai.
(To watch & report)