This Civil Revision Petition has been filed against the fair and decretal order, dated 11.10.2013, passed in I.A.No.162 of 2010 in I.A.No.355 of 2007 in O.S.No.250 of 2000, by the learned District Munsif-cum-Judicial Magistrate, Vedasandur.
2. Facts of the case:
(i) The petitioners are the defendants 1 and 3. The respondent is the plaintiff and she filed the suit in O.S.No.250 of 2000, on the file of the District Munsif-cum-Judicial Magistrate Court, Vedasandur, for partition.
(ii) The petitioners entered appearance through Advocate and subsequently, they did not file written statement and contest the suit. Therefore, an ex-parte preliminary decree was passed on 06.12.2001.
(iii) The respondent filed I.A.No.251 of 2005 for passing of final decree. The petitioners entered appearance on 20.10.2005 through Advocate in the said interlocutory application. Thereafter, after two years, the petitioners filed I.A.No.355 of 2007 under Section 5 of the Limitation Act for condonation of delay of 2024 days in filing petition to set aside the ex-parte preliminary decree. The said application was dismissed for default on 01.04.2009. The petitioners filed an application in I.A.No.162 of 2010 for condonation of delay of 333 days in filing the petition to restore I.A.No.355 of 2007.
(iv) According to the petitioners, the first petitioner was looking after the case and conducting the suit. He was suffering from jaundice and was taking native treatment and therefore, he could not meet his Advocate and therefore, the said I.A.No.355 of 2007 was dismissed for default. Only after recovery from illness, he enquired about the stage of the suit and immediately, the petitioners filed I.A.No.162 of 2010 to condone the delay in filing the petition to restore I.A.No.355 of 2007 and prayed for allowing the petition.
(v) The respondent filed counter affidavit and submitted that the petitioners entered appearance on 20.10.2005 in I.A.No.251 of 2005 filed by the respondent for passing of final decree and did not file any application to set aside the ex-parte preliminary decree immediately. The ex-parte preliminary decree was passed on 06.12.2001. The petitioners filed an application only on 20.07.2007 with a delay of 2024 days and the same was dismissed on 01.04.2009. On 14.11.2009 the first petitioner was present when the Advocate Commissioner inspected the suit property along with Surveyor and the Village Administrative Officer. Further, the respondent filed two suits in O.S.Nos.164 of 2000 and 22 of 2001 against the petitioners. The petitioners are contesting the same. Therefore, the reasons given by the petitioners are not valid for condonation of delay.
(vi) The learned District Munsif-cum-Judicial Magistrate considering the averments mentioned in the affidavit and the counter affidavit and also considering the materials available on record, dismissed the application holding that the reasons given by the petitioner are not valid and sufficient to condone the delay.
3. Against the said order of dismissal dated 11.10.2013, the petitioners have come out with the present Civil Revision Petition.
4. The learned counsel for the petitioners submitted that the learned District Munsif-cum-Judicial Magistrate failed to see the reasons given by petitioners for condonation of delay. The first petitioner, who was conducting the case, was suffering from jaundice and could not meet his Advocate to conduct the case. The Hon'ble Apex Court and this Court have repeatedly held that petition for condonation of delay must be considered liberally and prayed for allowing the Civil Revision Petition.
5. The learned counsel for the respondent/caveator reiterated the averments made in the counter filed in I.A.No.162 of 2010 and submitted that the learned District Munsif-cum-Judicial Magistrate has properly considered all the materials on record and dismissed the application by giving cogent and valid reasons. There is no illegality or irregularity in the said order warranting interference by this Court and prayed for dismissal of the Civil Revision Petition.
6. I have heard the learned counsel for the petitioners and the respondent and carefully perused the materials available on record.
7. The petitioners after entering appearance through Advocate in the suit, did not file any written statement and therefore, an ex-parte preliminary decree was passed on 06.12.2001. The respondent has filed I.A.No.251 of 2005 for passing of final decree in the year 2005. The petitioners entered appearance on 20.10.2005 and filed I.A.No.355 of 2007 under Section 5 of the Limitation Act for condonation of delay of 2024 days in filing petition to set aside the ex-parte preliminary decree. The said application was dismissed for default on 01.04.2009. The respondent has stated that the first petitioner was present, when the Advocate Commissioner inspected the suit property on 14.11.2009 and entered appearance in the application for passing of final decree. This statement was not denied by the petitioners.
8. The Hon'ble Apex Court as well as this Court and the various High Courts have held that the length of delay is not the criteria and the reason given for condonation of delay must be bona fide and sufficient to condone the delay. The condonation of delay is the discretion of the Court and the said discretion must be exercised judicially. The Court must be liberal in considering to condone the delay and should not shut down the parties at the threshold itself preventing from putting forth their case. At the same time, the Courts must consider whether the reason given by the parties are bona fide or mala fide with a view to drag on the proceedings. The Courts must also take into consideration any right that would have accrued to the opposite party.
9. From the facts stated above, it is clear that the intention of the petitioners is only to drag on the proceedings and only with mala fide intention, they filed applications in I.A.No.355 of 2007 for condonation of delay of 2024 days in filing petition to set aside the ex-parte preliminary decree and I.A.No.162 of 2010 for condonation of delay of 333 days in filing the petition to restore I.A.No.355 of 2007. In the circumstances, the learned District Munsif-cum-Judicial Magistrate has rightly considered these facts and dismissed the application.
10. In the result, the Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
To The District Munsif-cum-Judicial Magistrate, Vedasandur..