The petitioner has filed this Civil Revision Petition to set aside the fair and final order dated 19.10.2011 made in I.A.No.465 of 2011 in O.S.No.188 of 2008 on the file of the District Munsif Court, Rasipuram by allowing this Civil Revision Petition.
2. The case of the revision petitioners is that the respondents herein filed the suit against the revision petitioners in O.S.No.188 of 2008 before the learned Principal District Munsif, Rasipuram for declaration and permanent injunction. In the said suit, an ex-parte decree was passed against the revision petitioners on 18.02.2010. To set aside the ex-parte decree passed against the revision petitioner, they filed an application in I.A.No.465 of 2011 seeking to condone delay of 498 days in setting aside the ex-parte decree. The said application was resisted by the respondents herein by filing counter affidavit.
3. After enquiry the trial Court was pleased to dismiss the condone delay application filed in I.A.No.465 of 2011 in O.S.No.188 of 2008 by order and decree dated 19.10.2011. As against the said dismissal order, the revision petitioners have come up with the present civil revision petition.
4. I have heard Mr.A.Thiyagarajan, learned counsel appearing for the revision petitioners and there is no representation for the respondents. I have also perused the entire records.
5. A perusal of the order impugned in this Civil Revision Petition, the Learned District Munsif has dismissed the condone delay application filed by the revision petitioners seeking to condone the delay of 498 days in seeking to set aside the ex-parte decree dated 18.02.2010 on the ground that the revision petitioners have not assigned any valid reason to condone the delay of 568 days. The Learned District Munsif have further held that as per the Judgment of the Hon’ble Apex Court, if no sufficient reason is assigned by the parties to condone the delay filed under Section 5 of the limitation Act, the Courts should not have condoned the delay by invoking its inherent power.
6. It is true that there is catena of decisions of the Hon’ble Apex Court and as well as various High Courts have held that a person filing condone delay application seeking to set aside the ex-parte decree passed against him, must explain the delay properly and he should assign valid, acceptable and convincing reason for condoning the delay. Further the length of delay is immaterial, but cogent and convincing reason must be assigned.
7. In the present case on hand, the revision petitioners has assigned the reason to condone the delay of 498 days in seeking to set aside the ex-parte decree passed against them is that they have not served with a copy of plaint or any other document in the suit. The revision petitioners came to know about the ex-parte decree passed against them from the villagers just 2 days prior to the filing of the condone delay application and there after they have appointed their Counsel and after verification from the Court diary their Advocate informed them that on 18.02.2010 an ex-parte decree was passed against them. The 1st petitioner herein filed affidavit stating that he is the eldest member in the family and he only conducting case on behalf of the other petitioners.
8. On the other hand, the respondents herein have stated in the counter affidavit that the 5th petitioner herein filed Vakalat on 27.11.2008 and the petitioners 1 to 4 and 5 herein have received summon sent by the Court on 26.11.2008. Despite the receipt of notice, the petitioners 1 and 2 herein failed to appear before the Court and therefore an ex-parte order was passed against them. Thereafter an ex-pate order was passed against the other petitioners herein also.
Subsequently the 1st plaintiff was examined and an ex-parte decree was passed against the petitioners herein on 18.02.2010. The revision petitioners knowing full well about the pendency of the suit, allowed the same to be decreed by ex-parte.
9. I have considered the rival submissions. It is a suit for declaration of title and consequential permanent injunction. The plaintiffs have claimed title by adverse possession. Since it is a suit for declaration and in which the title of the suit property is going to be decided and the same should be a contested one.
10. In a case relating to section 5 of the Limitation Act, has to be dealt with liberally and in that context it is useful to refer the Judgment reported in 2016 (5) CTC 117 in Sarasu v. Ravi wherein it is held that “When a Court of Law deals with an Application to condone the delay filed under Section 5 of the Limitation Act, such Application will have to be generally viewed in a liberal and lenient way to do substantial justice between the parties. By projecting an Application to condone the delay as per Section 5 of the Limitation Act, belatedly, no party will file the same with a mala fide intention. If a party files a Delay Condonation Application belatedly, he or she runs a serious risk.
However, if an Application filed under Section 5 of the Limitation Act is allowed by this Court, to advance the cause of substantial justice, then the maximum that can happen is that a party will be allowed to partake in the main arena of legal proceedings and the main cause can be decided on merits. Per contra, if a meritorious matter is thrown out at the threshold or at early stage the cause of justice will be certainly defeated. In a Condonation of Delay Application filed under Section 5 of the limitation Act, 1963, the length and breadth of the delay is not a material/ relevant factor”.
11. As per the dictum laid down in the above judgments of our High Court, this Court feels that to meet the ends of justice, one more opportunity is to be given to the revision petitioner to get a contested decree.
12. Hence I am of the considered view that the petitioners herein and the respondents herein must get a contested decree on merits. At the same time, because of the delay caused by the revision petitioners, they have to pay cost for the delay caused by them in disposing the suit. In the interest of justice the delay of 498 days is condoned by imposing cost of Rs.5,000/- to the revision petitioner.
13. In the result:
(a) this Civil Revision Petition is allowed by setting aside the order passed in I.A.No.465 of 2011 in O.S.No.188 of 2008, dated 19.10.2011, on the file of the learned District Munsif Court, Rasipuram, on condition that the petitioners shall pay the cost of Rs.5,000/- to the Resident Medical Officer, Government Hospital of Thoracic Medicine, Thoppur, Madurai, within a period of three weeks from the date of receipt of a copy of this order;
(b) the trial Court is hereby directed to number the set aside application and pass order within a period of one month, thereafter by giving notice to both parties. Consequently, connected miscellaneous petition is closed.
28.02.2017 Note:Issue order copy on 29.08.2017 Internet:Yes Index:Yes vs To The District Munsif Court, Rasipuram.
M.V.MURALIDARAN, J.
vs CRP(NPD)No.2630 of 2013 and M.P.No.1 of 2013 28.02.2017