The sufficiency of the cause for delay is the primary criterion for condoning delay under the Limitation Act, not merely the length of the delay.

ORDER :

(B. S. BHANUMATHI, J.)

This revision under Section 115 CPC is directed against the order and decree, dated 30.08.2023, dismissing I.A.No.153 of 2023 in O.S.No.173 of 2011 on the file of the Court of the Senior Civil Judge, Chodavaram, filed by the defendants under Section 5 of the Limitation Act,1963 read with Section 151 CPC to condone delay of 1978 days in filing the petition to set aside the ex parte decree, dated 21.08.2017, passed in the above suit.

2. Heard the learned counsel for the parties.

3. The case of the defendants, as stated in the affidavit filed in support of the petition, in brief, are as follows:

The suit was filed by the plaintiffs against the defendants seeking partition of the suit schedule property. As no written statement was filed on behalf of the defendants, the trial Court set the defendants ex parte and passed decree, dated 21.08.2017, in favour of the plaintiffs. The 1^st defendant is an old lady and unable to move out of the bed and for the said reason, the other defendants 2 to 4 were looking after her health and welfare, and therefore, the written statement could not be filed in the stipulated time due to spread of the corona pandemic. As her health further deteriorated, the defendants could not file petition to set aside the ex parte decree, dated 21.08.2017. Non-filing of the petition to set aside the ex parte decree is neither wilful nor wanton. Hence, this petition to condone the delay of 1978 days in filing the petition to set aside the ex parte decree, dated 21.08.2017.

4. The 2^nd respondent filed counter opposing the petition and contending as follows:

The plaintiff filed the suit in the year 2011; that the defendants 1 to 4 received the suit summons and engaged their counsels and filed their written statement and contested the same and subsequently in the final decree petition also the defendants received the court notices and they were set ex parte in the final decree petition on 03.08.2018 and 12.10.2018; that the petitioners/defendants having knowledge about the suit proceedings and also final decree proceedings, wilfully and wantonly did not contest in the suit and also in the final decree petition; that after a lapse of 12 years period from the date of the suit, now the defendants filed the present petition with all false allegations with a view to drag on the proceedings and to avoid delivery of the decree schedule properties to the DHr; that all other allegations are false; that the delay of 1978 days is abnormal; that day-to-day’s delay was not explained; that no medical certificate in proof of ill-health was filed; that there are no valid reasons and that the petition is liable to be dismissed.

5. After hearing both parties, the trial Court dismissed the petition on the ground that no sufficient cause was shown to condone abnormally long delay of 1978 days.

6. Aggrieved by the same, the defendants preferred this revision petition.

7. The learned counsel for the petitioners submitted that though the petitioners have stated in their affidavit that they could not file the written statement in time due to Corona, it is a mistaken fact as they had filed written statements as recorded in the judgment of the trial Court which is sought to be set aside. However, she submitted that a preliminary decree passed by the trial Court is erroneous as no share was allotted to the defendants, though the suit is for partition. She further submitted that since the defendants are illiterate and the 1^st defendant is an old and sick person, the suit could not be effectively prosecuted and therefore the delay may be condoned, to provide a fair opportunity to decide the merits, rather than passing the decree ex parte.

8. On the other hand, the learned counsel for the respondent No.2/plaintiff No.2 submitted that the reason stated for their delay i.e., the petitioners could not file the written statement in time is a false statement and further reason stated for non filing of the written statement is due to