@JUDGMENTTAG-ORDER
S. Tamilvanan, J.@mdashThis Civil Revision Petition has been preferred against the Order and Decreetal Order, dated 08.02.2006 made in I.A. No. 133 of 2004 in O.S. No. 574 of 1987 on the file of the District Munsif Court, Panruti. The revision petitioner herein is the defendant before the trial court. The respondent herein filed the suit against the revision petitioner and another, seeking partition and separate possession of the plaint schedule mentioned property. Due to the non-appearance of the petitioner herein, he was set ex-parte by the court below and exparte preliminary decree was also passed. Pursuant to the exparte decree, the respondent herein filed final decree application before the court below. Aggrieved by the exparte preliminary decree, the revision petitioner/D2 filed an application under Order IX Rule 13 CPC to set aside the exparte decree along with the application u/s 5 of the Limitation Act to condone the delay of 532 days in filing the application to set aside the exparte decree, the same was dismissed by the court below. Aggrieved by which, this Civil Revision Petition has been preferred.
2. According to the petitioner, on 01.04.2002, his counsel has reported no instructions, hence, he was called absent and set exparte and the exparte decree was passed on 01.04.2002. He has further stated that he was working at Tirumala-Tirupathi Devasthanam and also could not attend his work regularly, as he had fallen ill. According to him, he suffered high fever, which later resulted into jaundice in virulent form. Hence, he was bed ridden for over 11/2 years.
3. The respondent in his counter filed before the court below has stated that the suit was decreed exparte earlier in two occasions. On the application filed by the revision petitioner herein, the same was set aside and as per the conditional order, the court below had directed the petitioner herein to pay cost. He has further stated that after restoration, the suit was posted in the monthly list for several times and the same was adjourned at the request of the learned counsel for the petitioner herein before the trial court, then he reported no instructions for the petitioner on 01.04.2002, when the case was posted in the special list. The respondent has also denied the averments of the petitioner that he was bed ridden for over 1 1/2 years due to jaundice and was taking treatment.
4. Pursuant to the preliminary decree for partition, the respondent filed final decree application, wherein notice was ordered, but the revision petitioner evaded the service of notice, hence, substituted service was ordered by publication and accordingly, publication was effected, then final decree was also passed. The court below holding that the petitioner herein has not satisfactorily explained the delay of 532 days in filing the application to set aside the exparte decree, has dismissed the application as no merits.
5. As per the impugned order, it is seen that earlier twice the suit had been decreed exparte and in the first time, the application filed by the petitioner was allowed without cost and subsequently, the application was allowed on costs to be paid on the respondent. Therefore, the court has to consider whether there is any bonafide reason to condone the inordinate delay of 532 days in filing the application u/s 5 of Limitation Act.
6. It is not in dispute that the suit was decreed twice exparte and the second time on the application filed by the petitioner herein, the exparte decree was set aside by the court below, directing the petitioner herein to pay cost to the respondent, however, the learned counsel appearing for the petitioner reported no instructions for the petitioner, subsequently again the suit was decreed exparte by the court below. The respondent has also denied the averments of the petitioner that he had been suffering from jaundice for 1 1/2 years.
7. Learned counsel appearing for the respondent contended that no one can survive for about 1 1/2 years continuously suffering from jaundice and there is no evidence to show that the petitioner was suffering from jaundice for about 532 days. In the counter, the respondent has specifically stated that the petitioner has all along present in his native village, but wantonly evaded the service and that he was not suffering from jaundice. In such circumstances, the duty is cost upon the petitioner to produce positive evidence to show that he was suffering from jaundice. Even, if he was suffering from jaundice, nothing prevented him from filing application under Order IX Rule 13 CPC through his counsel to set aside the exparte decree.
8. As per the impugned order, it is seen that for the final decree application, notice was served on the revision petitioner by registered post on 27.12.2002, but he failed to appear, hence, he was called absent and set exparte. Then on 09.09.2003, considering the report filed by the Advocate Commissioner, final decree for partition was passed. As per the impugned order, it is seen that the petitioner herein had received notice in the final decree application, however, remained absent for the reasons best known to him. Subsequently, filed an application under Order IX Rule 13 CPC to set aside the preliminary decree passed on 01.04.2002 with the application u/s 5 of the Limitation Act to condone the delay of 532 days. Though the petitioner had received notice in the final decree application, he has not taken any steps immediately to set aside the preliminary decree and only after passing the final decree, he filed application to condone the delay in filing the unnumbered application, under Order IX Rule 13 CPC and therefore, there is no bonafide reason to condone the inordinate delay of 532 days in filing the application to set aside the preliminary decree, after final decree having been passed by the court below.
9. Mr. Srinath Sridevan, learned counsel appearing for the petitioner relied on the decision,
10. In the aforesaid decision, though the appellant tried to explain the delay in filing the application for setting aside the exparte decree as was evidenced from his application filed u/s 5 of the Limitation Act accompanied by an affidavit therein, however, the same was not considered by the court below. Hence, in the interest of justice, the delay was ordered to be condoned by the Hon''ble Apex Court.
11. In the instant case, it is not in dispute that twice exparte decree was passed against the revision petitioner/D2 and on filing applications, the exparte decrees already passed on two different dates have been set aside and learned counsel appearing for the petitioner/D2 before the trial court reported no instructions and further, the petitioner herein was also called absent, hence, he was set exparte and the exparte decree was passed by the court below. It is not in dispute that pursuant to the preliminary decree, final decree application was also filed and in the final decree application, notice was served on the revision petitioner, who was the second defendant in the suit. However, due to the non-appearance, final decree was also passed on 09.09.2003. Then only, the petitioner herein has come forward with the application to condone the delay of 532 days in filing an application to set aside the exparte preliminary decree. Therefore, the aforesaid decision rendered by the Hon''ble Apex Court is not applicable to the facts and circumstances of this case.
12. Mr. A. Amalraj, learned counsel appearing for the respondent relied on the following decisions :
1.
2.
3. Reliance Industries Ltd., vs. M. Rajkumari, 2002(1) CTC 157;
13. In the decision, Sri Veera Hanuman Rice & Flour Mill vs. State Bank of India, reported in AIR 2000 SCW 2575, the Hon''ble Supreme Court has held that while indulgence should be shown in considering claims of parties there is no justification to ignore the subsequent facts and the realities of the situation. Though the Law of Limitation may sometimes harshly affect a particular party, while considering the matters that fall u/s 5 of the Limitation Act, discretion has to be exercised cautiously only in the interest of justice. Therefore, mechanically, the unreasonable, unexplained inordinate delay cannot be condoned.
14. In the instant case, twice the suit was decreed exparte and subsequently, on the applications filed by the petitioner herein, the exparte decrees passed on the earlier occasions were set aside. There is a delay of 532 days in filing the application u/s 5 of Limitation Act. The reason stated by the petitioner that he was suffering from jaundice for more than 1 1/2 years, without any positive evidence cannot be accepted and further, in the final decree application, notice was served on the revision petitioner. Even after service of notice, the petitioner did not appear before the court below and failed to file the petition immediately, hence, final decree was passed. According to the learned counsel appearing for the respondent, pursuant to the final decree, possession was also taken over by the respondent. The petitioner has filed the application under Order IX Rule 13 CPC to set aside the exparte preliminary decree along with the application u/s 5 of the Limitation Act to condone the inordinate delay of 532 days, even without challenging the final decree and other further proceedings, hence, it could be construed as an abuse of process of law, since the petitioner has not challenged the final decree, that was passed prior to the filing of the petition.
15. On the aforesaid facts and circumstances, I am of the view that there is no error or material irregularity in the impugned order passed by the court below to be interfered with, hence, the Civil Revision Petition fails and accordingly, the same is liable to be dismissed. In the result, this Civil Revision Petition is dismissed. Consequently, connected miscellaneous petition is also dismissed. However, there is no order as to costs.
