Plaintiff in a mortgage recovery suit challenged dismissal of her application to condone 2430 days' delay in re-presenting the petition to set aside an ex-parte decree. The High Court found no sufficient cause shown and no infirmity in the trial court's order.
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CRP.No.1543 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.09.2024
CORAM:
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
C.R.P.No.1543 of 2024
R.Meenakumari
.. Petitioner Vs.
David Vijayaraj
.. Respondent
Prayer:- Civil Revision Petition filed under Article 227 of the Constitution of India to set aside the fair and decretal order in I.A.No.1 of 2021 in O.S.No.18 of 2013 by the learned Additional Subordinate Judge Court at Chengalpattu dated 29.11.2023 by allowing the above Civil Revision Petition.
For Petitioner : Mr.R.Gandhi For Respondent : Mr.G.Balasubramanian
ORDER
This petition has been filed as against the order dated 29.11.2023
made in I.A.No.1 of 2021 in O.S.No.18 of 2013 on the file of learned Additional Subordinate Judge, Chengalpattu.
recovery of mortgage due on the file of learned Additional Subordinate
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Judge, Chengalpattu. The suit was posted for trial on 11.11.2014 and since, the petitioner did not appear before the Court, the suit was dismissed for default on 11.11.2014. The petitioner immediately filed the restoration petition under Order IX Rule 9 of CPC on 19.11.2014 in S.R.No.6045/2014 and the petition was returned for certain compliances on 30.04.2015 with a direction to represented within one month. However, the petition was re-presented on 21.09.2015 with a delay of 84 days with condone delay petition. Thereafter, the petition was misplaced and later it was re-presented on 21.02.2020 and there has been a delay of 2430 days in representing the papers. The petition filed by petitioner to condone the delay of 2430 days in filing the petition to set aside the ex-parte decree dated 11.11.2014 was dismissed on 29.11.2023 vide the impugned order. Challenging the dismissal order, the present revision petition has been filed.
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restoration application was filed on 19.11.2014, however, the application was returned for certain compliances on 30.04.2014. Since, the petitioner
was suffering from viral fewer, the application was filed with a delay of 84 days on 21.09.2015 and thereafter, the petitioner was misplaced and the petitioner went to her native Rajasthan. She was unable to contact her earlier counsel who was pursuing the case also passed away on 25.10.2017, thereafter, the petitioner engaged another counsel and represented the application on 21.02.2020 with a delay of 2430 days. The Trial Court finding that no sufficient cause has been shown by the petitioner to condone the delay vide the impugned order dated 29.11.2023 dismissed the petition. Hence, seeks to set aside the dismissal order and allow the revision petition.
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has dismissed the application. Hence, opposed the revision petition.
money based on the mortgage deed on the file of learned Additional Subordinate Judge, Chengalpattu. Since, the petitioner did not appear on the date of trial on 11.11.2014, the Trial Court dismissed the suit for default on 11.11.2014. The petitioner had filed a restoration application in S.R.No.6045/2014 on 19.11.2014, however, the application was returned for certain compliances on 30.04.2015 and thereby, the application was represented on several occasions and finally, the application was filed on 21.02.2020 with a petition to condone the delay of 2430 days in filing the petition to set aside the ex-parte decree dated 11.11.2014. The Trial Court finding that no sufficient cause has been shown to condone the delay of 2430 days had dismissed the application vide the order dated 29.11.2023.
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applicant, who seeks condonation of delay, has to show sufficient or just cause. Such proof of sufficient or just cause is a pre-condition for entertaining the application for condonation of delay. The discretion to allow an application for condonation of delay is different from the satisfaction of the requirements of Section 5 of the Limitation Act. The discretion cannot be exercised by a Court when the applicant seeking condonation of delay is unable to satisfy the Court that he had just or sufficient cause for not approaching the Court earlier and that the delay was occasioned beyond his control, there was no gross negligence or deliberate inaction or any lack of bonafides. If the petitioner is able to show and satisfy the Court, in the absence of the above militating factors, then he is entitled to discretion being exercised in his favour. However, in this case, on perusal of the affidavits and records, this Court is of the view that the petitioner has not shown sufficient cause to condone the huge delay of 2430 days. That apart, condoning the long delay in the absence of sufficient reason would cause prejudice to the other parties and thus, this petition is devoid of merits.
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order dated 29.11.2023 passed by the learned Additional Subordinate Judge, Chengalpattu in I.A.No.1/2021 in unnumbered O.S.No.18 of 2013 and this civil revision petition stands dismissed as devoid of merits. No costs.
26.09.2024
dhk Index : Yes/No Internet : Yes/No
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CRP.No.1543 of 2024
To,
The Additional Subordinate Judge, Chengalpattu
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CRP.No.1543 of 2024
A.D.JAGADISH CHANDIRA, J.,
dhk
C.R.P.No.1543 of 2024
26.09.2024
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1 issue framed by the court
Whether sufficient cause was shown to condone a delay of 2430 days in re-presenting the petition to set aside an ex-parte decree dismissing a mortgage suit.
3 provisions across 3 enactments
R.Meenakumari
David Vijayaraj
A.D.Jagadish Chandira
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
