IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:13.07.2007 CORAM: THE HON'BLE MR.JUSTICE M.CHOCKALINGAM CRP.NPD.NO.1154 of 2007 and M.P.NO.1 OF 2007 Celine Pushparaj ...Petitioner Vs. Feffi Bai ...Respondent. The Civil Revision petition is filed against the fair and decretal order passed by the District Munsif, Alandur dated 13.02.2007 dismissing the condone delay petition filed in I.A.No.360 of 2006 in O.S.No.764 of 2004. For Petitioner : Mr.A.G.Rajan For Respondents : Mr.R.Sampath Kumar O R D E R
Challenge is made to the order of dismissal of the learned District Munsif, Alandur made in I.A.No.360 of 2006 whereby the delay of 129 days was sought to be condoned in making the application to set aside the exparte decree in O.S.No.764 of2004.
2. Heard the learned counsel on either side.
3. It was the suit for ejectment and it was taken on file in the year 2004. Service of summons was effected on 5.11.2004 and the defendant was also appeared. Though the matter was adjourned for number of hearings and time was also granted for filing written statement till the month of July,2005, no written statement was filed. The matter was posted again on 29.7.2005 and on that day, exparte decree came to be passed . Subsequently, an application has been filed to set aside the exparte decree and while doing so, according to the revision petitioner, the delay of 129 days has occasioned since the counsel was at Vellore for taking treatment, he was not able to give instructions and hence the delay has got to be condoned. On contest, the said application was dismissed. Hence, the Civil revision petition filed before this Court at the instance of the defendant.
4. What was urged before the Court below and also equally here is that a delay of 129 days was occasioned in filing the the application to set aside the exparte decree and the Court has to take a liberal approach in condoning the delay and apart from that because the counsel for the defendant was not doing well and he was taking treatment at Vellore, he was not able to give instructions to file the written statement in time and hence it has got to be set aside.
5. Learned counsel for the respondent would submit that the respondent has entered appearance on 5.11.2004 through counsel and the matter was adjourned to 17.6.2005 and it was finally adjourned for filing written statement and it was not filed on the said date and again it was posted on 29.7.2005 and since the written statement was not filed , an exparte decree came to be passed on the said date. Now, the counsel would submit that except the fact that the counsel was away at Vellore for taking treatment, nothing was averred in the affidavit filed in support of the petition. The petitioner has filed two affidavits giving two different statements as to the delay caused. Under such circumstances, it is deliberate and delaying tactics and hence the application was filed after time. Hence, the application must be dismissed.
6. After careful consideration of the rival submissions made, this Court is of the considered opinion that the Civil Revision petition has got to be dismissed. In the instant case, according to the petitioner, a delay of 129 days has occasioned. Ordinarily, such a delay can be condoned. But in a case like this, since the delay has not been properly explained, the application for condoning the delay has to be dismissed. Even there was a huge delay, if acceptable reasons are adduced, the delay can be condoned. In the instant case, no sufficient reasons has been adduced. Under such circumstances, this Court is of the considered opinion that no question of applying liberal approach would arise . In the instant case, the defendant was appeared before the Court on 5.11.2004 and sufficient time of eight weeks was granted for filing written statement and at no point of time, written statement was filed and finally it was posted on 29.7.2005, nearly after 40 days. Even then, no written statement was filed. The only reason adduced by the defendant all along was that his counsel was away at Vellore, and no material was placed before the Court to that effect. All would go to show the carelessness on the part of the defendant and since he has not taking proper reasons for condoning the delay, this Court feels that it is not a fit case where indulgence could be shown to the petitioner/defendant. Under such circumstances, the Civil Revision petition has got to be dismissed and accordingly it is dismissed. No costs. Consequently, MP.No.1 of 2007 is also dismissed.
VJY
To
District Munsif,
Alandur