THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
CIVIL REVISION PETITION No.3752 of 2019
ORDER:
This civil revision petition filed under Article 227 of the Constitution of India questions the correctness of the order dated 20.09.2019 of learned Principal Junior Civil Judge, Adoni in I.A.No.197 of 2019 in O.S.No.122 of 2017.
2. By the impugned order, the learned trial Court refused to condone the delay to file a petition to set aside the ex parte decree suffered by the revision petitioner. The revision petitioner was the defendant before the trial Court. The respondent herein was the plaintiff before the learned trial Court.
3. O.S.No.122 of 2017 was a suit filed for recovery of an amount of Rs.1,66,050/- based on the foot of a promissory note dated 09.07.2014. The defendant therein received suit summons but did not appear and contest. He was set ex parte on 14.06.2017. Thereafter, evidence in the suit commenced and PW.1 gave evidence on 28.06.2017. Then the learned trial Court passed a judgment and decree dated 04.07.2017. Thus, there was ex parte decree passed against the defendant. 2
Dr. VRKS, J C.R.P.No.3752 of 2019
4. The defendant in the suit filed I.A.No.197 of 2019 under Section 5 of the Limitation Act, 1963 seeking to condone the delay of 110 days in filing a petition to set aside the ex parte decree. The brief affidavit of the petitioner filed in support of the said petition is extracted below:
"1. I am the defendant in the above suit and petitioner herein and I know the facts of the case. The plaintiffs have filed the above suit against me for recovery of the suit amount under the strength of pronote.
2. The Hon'ble Court was pleased to grant ex-parte decree against me on 04.07.2017 as I could not contest the suit.
3. I submit that as my wife health was not well I could not engage a counsel to contest the case. Recently I came to know about the passing of ex-parte decree in the above suit.
4. I further submit that now I was advised to set aside the ex-parte decree as I got good case to defend and therefore there is delay in filing this petition to set-aside the ex-parte decree dated 04.07.2017. If the delay is not condoned I would be put to great hardship."
5. The plaintiff in the suit filed a verified counter and denied each and every allegation made in the petition and it is stated that the allegations made were not supported by any material. It further mentioned about initiation of execution proceedings and the progress made therein and attributed gross negligence 3 Dr. VRKS, J C.R.P.No.3752 of 2019 on part of the petitioner and absence of bona fides. It is then stated that the plaintiff in the suit is aged 80 years and only to harass her, the present petition is filed. With those reasons, she sought for dismissal of the petition.
6. Learned Principal Junior Civil Judge, Adoni enquired into the matter and found that sufficient cause was not shown by the petitioner/defendant and dismissed the petition.
7. In this revision, the defendant in the suit states that in the suit, appeal and execution proceedings, he did not receive notice and ex parte orders were passed and by playing fraud on the Court, order of the dismissal of the petition was obtained and it is erroneous, arbitrary, illegal and contrary to law. If execution proceedings are allowed, it would cause irreparable loss and hardship. For these reasons, he seeks to set aside the impugned order.
8. Before issuance of notice to the respondent, learned counsel for the revision petitioner submitted arguments.
9. Considering the material on record and the submissions made by the learned counsel for revision petitioner, the point that arises for consideration is:
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Dr. VRKS, J C.R.P.No.3752 of 2019 "Whether the trial Court failed to exercise jurisdiction judiciously though sufficient cause for condoning delay was shown by the revision petitioner?
10. Point:
Counter filed by the respondent before the trial Court and the order of the trial Court, which is impugned in this revision, would show that subsequent to passing of the decree, the plaintiff/D.Hr. filed E.P.No.100 of 2017 in O.S.No.122 of 2017 seeking for arrest and detention of the J.Dr. for his failure to pay the decretal amount. J.Dr./defendant/the present revision petitioner made his appearance and the executing Court recorded the evidence on both sides and allowed the execution petition and ordered for arrest of J.Dr./revision petitioner. When the Court Amin went to effect the arrest of him, he refused to submit himself and therefore, the Amin went back and the D.Hr. filed an application for police aid. While the said application for police aid was pending before the executing Court, the defendant moved an application under Section 5 of the Limitation Act leading to the impugned order of the learned trial Court.
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11. The order of the learned trial Court indicates that the affidavit of the petitioner is too vague to be considered as it failed to mention the nature of sickness suffered by his wife and the period of her sickness and the treatment that she had taken and it further shows that to substantiate about the alleged sickness of the wife, the petitioner did not file any material before it. It further indicates that this petitioner participated in the execution proceedings and only when the matter came up to the stage of police aid for his arrest, he has come up with this petition to condone the delay for filing the petition to set aside the ex parte decree. With this reasoning, it found that there was no sufficient cause shown and therefore refused to condone the delay. Thus, in a sense the order of the trial Court indicates full participation of this revision petitioner during execution proceedings and thus, there were no bona fides in moving the application.
12. In this revision, the revision petitioner states that he did not receive summons either in the suit or in the execution proceedings and fraud was played on the Court. Now this contention stands contrary to the very affidavit filed by this revision petitioner before the learned trial Court. At para No.3 6 Dr. VRKS, J C.R.P.No.3752 of 2019 of his sworn affidavit, he mentioned that health of his wife was not well and therefore, he could not engage a counsel to contest the suit. Thus, the ground urged in the revision that summons in the suit were not received is incorrect. Coming to execution proceedings, the impugned order shows that he made his appearance before the executing Court on receipt of notice and thereafter, he put up his contest. The material papers filed before this Court would also show certain counters filed by the present revision petitioner before the executing Court as he was a J.Dr. before the executing Court. Thus, the ground urged in the revision that the J.Dr./revision petitioner did not receive any notice from the executing Court is also incorrect. The counter of the respondent and the impugned order of the trial Court when categorically indicate about execution proceedings, the affidavit filed by this revision petitioner has not made a mention about any such proceedings. Thus, this revision petitioner purposefully concealed material facts before the Court. This revision petitioner failed to mention the nature of the sickness of his wife and how that sickness effected his effort to contact a lawyer to contest the suit. Further, the affidavit is silent as to the date on which he came to know about the 7 Dr. VRKS, J C.R.P.No.3752 of 2019 ex parte decree that was passed. Learned trial Court properly analyzed all the facts and stated that the petitioner failed to show sufficient cause. Once the cause of delay is not properly explained, the petition under Section 5 of the Limitation Act cannot be allowed. When he was watching the execution proceedings and then filed the petition to condone the delay, such delay cannot be considered to be sufficient cause.
13. Learned counsel for the revision petitioner cited a judgment in Ramesh v. Sadhasivamoorthy1. Learned counsel submits that, that was a case where 1379 days delay was condoned and in the case at hand it was only 110 days delay.
14. Having considered the ruling cited, it has to be stated that the length of the delay by itself is no ground to refuse to condone the delay and what has to be seen is whether the cause of delay is properly explained and whether the explanation amounted to furnishing sufficient cause. In the cited ruling, the High Court of Madras essentially considered a proposition about substantive contentions for the defendant in a suit and the magnitude of the dispute in the suit as proper factors for 1 2018 Law Suit (Mad) 8430 8 Dr. VRKS, J C.R.P.No.3752 of 2019 consideration and in that context, it found the explanation offered by the defendant/revision petitioner therein as sufficient and condoned the delay and inflicted compensatory costs of Rs.50,000/-. In the case at hand, the suit is based on a promissory note of Rs.1,00,000/- and the revision petitioner neither before the trial Court nor before this Court ever showed his possible defence as against the claim in the plaint. Therefore, the ruling cited having no resemblance on facts does not lend assistance to the revision petitioner.
15. Having considered the entire material on record, it has to be stated that the impugned order indicates proper appreciation of the facts and in the opinion of the trial Court, the facts did not show sufficient cause to condone the delay and since the approach is according to legal reasoning and as per the law, this Court sitting in a revision does not find anything to interfere with it. Therefore, the point is answered against the revision petitioner.
16. In the result, this Civil Revision Petition is dismissed confirming the order dated 20.09.2019 in I.A.No.197 of 2019 in O.S.No.122 of 2017 on the file of learned Principal Junior Civil Judge, Adoni. There shall be no order as to costs. 9
Dr. VRKS, J C.R.P.No.3752 of 2019 As a sequel, miscellaneous applications pending, if any, shall stand closed.
_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 14.10.2022 Ivd 10 Dr. VRKS, J C.R.P.No.3752 of 2019 THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR CIVIL REVISION PETITION No.3752 of 2019 Date: 14.10.2022 Ivd