The petitioner/defendant has projected the Civil Revision petition as against the order dated 31.07.2009 made in I.A.159 of 2009 in O.S.No.352 of 2007 by the I Additional Sub Judge, Coimbatore in dismissing the application filed by the Revision petitioner/Defendant under Section 5 of the Limitation Act praying to condone the delay of 375 days in filing the set aside application.
2. To avoid an avoidable delay, in the interest of justice, this Court dispenses with the issuance of notice to the respondent/Plaintiff.
3. The trial Court while passing order in I.A.No.159 of 2009 on 31.07.2009 has inter alia opined that the Revision petitioner/defendant has been served with the Court notice by means of Registered post and the same has been marked as Ex.C.1 and as such, has not accepted the plea of the Revision petitioner/Defendant that he has not received the Court notice and resultantly, dismissed the application without costs.
4. Learned counsel for the Revision petitioner/Defendant contends that the trial Court has not appreciated the fact that the lengthy delay is immaterial and the explanation offered by the Revision petitioner is the only criteria to be considered and the Revision petitioner has been prevented by 'sufficient cause' from appearing before the Court due to the circumstances beyond his control and therefore, he cannot be penalised for no mistake committed by him and the normal rule is the acceptability of the explanation offered for the delay. Indeed, the term 'sufficient cause' has to be liberally construed so as to advance substantial justice and therefore, prays for allowing the Civil Revision petition to prevent aberration of justice.
5. This Court has paid its anxious consideration to the arguments advanced by the learned counsel for the petitioner and noticed the same.
6. It is the categorical stand taken by the Revision petitioner/Defendant before the trial court that he has not received any notice or summons from the trial Court and that ex parte decree has been passed by the trial Court on 20.10.2007 and further, he has not been aware of the proceedings and therefore, the delay in filing the set aside petition is neither wilful nor wanton. Also, it is the plea taken in the affidavit filed in I.A.No.159 of 2009 before the trial Court that he has not filed set aside application within 30 days from the date of passing of decree i.e. On or before 20.10.2007 but due to his illness and ignorance, he has not been in a position to file the set aside application in time and in that process, there occasioned delay of 375 days in filing the set aside application and therefore, the delay has to be condoned.
7. In the counter filed by the respondent/Plaintiff before the trial Court, it is categorically averred that the trial Court has also permitted private notice to the Revision Petitioner/Defendant returnable by 12.09.2007 and the same has been served on the Revision petitioner/Defendant and he has been set ex parte on 12.09.2007 and the case has been posted to 21.09.2007 for taking ex parte evidence and the same has been decreed and after passing of the decree, the respondent/plaintiff/decree-holder has filed E.P.No.83 of 2008 on the file of the II additional Sub Judge, Coimatore and notice has been ordered on 27.02.2008 and the revision Petitioner/Defendant has entered appearance on 28.04.2008 and only in April 2009, the present application has been filed and therefore, the Revision petitioner is well aware of the filing of the suit and passing of the decree and in short, the present application has been filed only with vindictive appearance to protract and prolong the proceedings.
8. On going through the orders passed by the trial Court, this Court is of the considered view that it is not correct on the part of the Revision petitioner/Defendant to state that he has not received the Court notice and in fact, the Court notice sent by Registered Post has been served upon the Revision Petitioner/Defendant , which has been admittedly marked as Ex.C.1 and viewed in that perspective, the reason stated by the Revision petitioner/Defendant that he has not received the suit summons, on the face of it, cannot be accepted in limini and resultantly, the Civil Revision petition fails and the same is, liable to be dismissed.
9. In the result, the Civil Revision petition is dismissed leaving the parties to bear their own costs. Resultantly, the order passed by the trial Court in I.A.No.159 of 2009 in O.S.No.352 of 2007 dated 31.07.2009 is affirmed by this Court.
pal To I Additional Sub court, Coimbatore