IMPORTANT POINT
The court emphasized that the sufficiency of the cause for delay, rather than its length, is the key criterion for condonation under Section 5 of the Limitation Act.

ORDER :

B.S. Bhanumathi, J.

1. The unsuccessful petitioner/defendant filed this revision assailing the order, dated 19.12.2022, dismissing the petition in I.A.No.460 of 2021 in O.S.No.11 of 2020 on the file of the Court of the Judge, Family Court-cum-VII Additional District & Sessions Court, Anantapuramu, filed under Section 5 of the Limitation Act, 1963, requesting to condone the delay of 40 days in filing petition to set aside the ex parte decree, dated 09.04.2021, passed in the above said suit.

2. Heard Sri Butta Vijaya Bhasker, learned counsel appearing for the revision petitioner/defendant and Sri J. Narayana Swamy, learned counsel for the respondent/plaintiff. The parties shall hereinafter be referred to as the plaintiff and defendant for convenience and clarity.

3. The case of the revision petitioner/defendant in support of the request for condonation of delay in filing the application seeking to set aside the ex parte decree passed in the suit, in brief, is as follows:

The sole plaintiff filed the suit to pass a preliminary decree for the suit amount of Rs.1,20,00,000/- with costs and subsequent interest thereon. Immediately after receipt of summons from the Court, he contacted his counsel and gave vakalat to him and the counsel informed him that there is no physical functioning of courts and vakalat has to be filed online. Accordingly, the learned counsel filed his vakalat through online before the Court of Principal District Judge, Anantapuramu. Thereafter, due to Covid pandemic situation, the petitioner could not meet his counsel. Later, he came to know that the matter is not on the file of the Principal District Judge's Court, Anantapuramu, but it is before the Court of VII Additional District Judge, Anantapuramu and that an ex parte decree, dated 09.04.2021 was passed against him by the Court of VII Additional District Judge, Anantapuramu. Immediately after coming to know of the same, the petitioner filed this petition along with the written statement. His non-appearance and non-filing of the written statement is neither intentional nor wanton but due to prevalence of Covid pandemic. The plaintiff filed the suit with all false allegations by suppressing the material facts and obtained an ex parte decree. If the ex parte decree and judgment are not set aside by condoning the delay, he will be deprived of his valuable rights. Hence, the present petition is filed to condone delay of 40 days in filing the petition to set aside the ex parte decree and judgment, dated 09.04.2021 passed in O.S.No.11 of 2020.

(b) The plaintiff filed counter before the trial Court stating that the respondent/plaintiff filed the suit for recovery of the suit amount basing on the registered mortgage deed executed by the petitioner/defendant. The respondent demanded for discharge of the mortgage deed amount with interest but the petitioner intentionally dragged on the matter. The petitioner received the summons and also engaged counsel and the counsel sought time for filing written statement. After examining the plaintiff, the trial Court passed the judgment and decree. However, the petitioner filed the petition to condone delay of 40 days in filing petition to set aside the ex parte decree without there being any reasons for the delay. There are no tenable grounds. Hence, the petition is liable to be dismissed.

4. The trial Court, by the impugned order, dismissed the petition observing that the petitioner failed to explain the delay for his non- appearance and he is taking advantage of the pandemic situation by suppressing the reasons for his failure to contest the suit and that there are no bona fides on the part of the petitioner.

Hence, this revision by the petitioner/defendant.

5. Now, the point for determination is:

Whether sufficient cause is shown for condonation of delay? And, if so, whether the delay can be condoned?

6. POINT:

6(a) It is settled law that the length of delay is not the criterion, but sufficiency of the cause of the delay is the