Petitioners challenged a District Munsif's order dismissing an application to condone a 644-day delay in setting aside an ex parte preliminary decree. The High Court held that no acceptable reason was furnished for the delay and dismissed the revision petition.
Civil Revision Petition dismissed; order of trial Court affirmed; parties to bear own costs.
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED :13 – 01 – 2015
CORAM:
THE HON’BLE TMT. JUSTICE PUSHPA SATHYANARAYANA
CRP (PD) (MD) No. 53 of 2015
and
M.P. (MD) No. 1 of 2015
Vs.
Baluchamy .. Respondent/Respondent/ Plaintiff
PRAYER: Petition is filed under Article 227 of Constitution of India to set aside the fair and decreetal order dated 02.8.2014 passed by the District Munsif, Oddanchatram, in I.A. No. 86 of 2012 in O.S. No. 2 of 2008.
For Petitioners : Mr. Adhimoola pandian for Mr.N.Damodaran
For Respondent : Mr. D. Venkatesh
ORDER
Challenging the order of dismissal dated 02.8.2014 passed by the learned District Munsif, Oddanchatram, in I.A. No. 86 of 2012 in O.S. No. 2 of 2008 refusing to allow the application filed under Section 5 of the Limitation Act praying to condone the delay of 644 days in filing an application to set aside the e x parte preliminary decree dated 03.11.2009 passed in a suit for partition, the present Civil Revision Petition has been preferred by the defendants 6, 7, 11 and 12.
staying outside the town due to their employment and hence, they entrusted the case to their parents to interact with the counsel. He further submitted that the other two petitioners, viz., defendants 7 and 12, being women, were not capable of prosecuting the case. According to the learned counsel, preliminary decree was passed in the suit O.S. No. 2 of 2008 as early as on 03.11.2009 and after the notice in the final decree proceedings were served on them, they filed the application to condone the delay of 644 days in filing petition to set aside the ex parte preliminary decree, which was dismissed by the trial Court.
condoning delay is matter of discretion of the Court. It is also settled that the length of delay is no matter whereas only the acceptability of the explanation is the only criteria in condoning the delay. Even short length of delay is uncondonable due to unacceptable explanation. In the instant case, no acceptable reason has been given by the petitioners for the inordinate delay of 644 days in filing petition to set aside the ex parte preliminary decree. Besides, the reason assigned is only with regard to petitioners 1 and 3, viz., defendants 6 and 11. Insofar as the other petitioners, viz., petitioners 2 and 4 / defendants 7 and 12 are concerned, no explanation, much less, acceptable reason is forthcoming even before this Court.
In the result the Civil Revision Petition is dismissed leaving the parties to bear their own costs. The order passed by the trial Court in I.A. No. 86 of 2012 is affirmed by this Court for the reasons ascribed in this Revision. Considering the facts and circumstances of the case, the parties are directed to bear their own costs in this Revision. Consequently, connected Miscellaneous Petition is closed.
Sd/Assistant Registrar (T&P)
/True Copy/
Sub- Assistant Registrar
To
gri
C.R.P. (PD) (MD) No. 53 of 2015 13 – 01 – 2015
gdr 10.02.2015 3p/5C
3 issues framed by the court
Whether a sufficient cause was made out to condone a delay of 644 days in setting aside an ex parte preliminary decree.
Whether the reason of absence due to employment and inability being women constitutes valid ground for condon ing delay.
Whether the trial Court erred in dismissing the application to set aside the ex parte preliminary decree.
2 provisions across 2 enactments
S. Shanmugavel
S. Umarani
K. Thangavel
K. Sathiyapriya
Baluchamy
PUSHPA SATHYANARAYANA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
