IMPORTANT POINT
The court emphasized that a party seeking condonation of delay must prove sufficient cause, and negligence or inaction will bar relief under the Limitation Act.

JUDGMENT :

These Original Petitions are disposed of by way of a common judgment as the questions involved are the same. The original petitions arise from O.S.No.190 of 2006 on the file of the Subordinate Judge’s Court, Mavelikkara. The petitioner is the plaintiff in the suit, and the respondent is the defendant.

2. The Original Suit was filed for specific performance of a contract. The defendant, along with the written statement, had filed a counter claim. The suit was listed for trial on 6.11.2011. On the day scheduled for trial the plaintiff did not appear. Therefore, the Court dismissed the suit for default and adjourned the case to 30.11.2011 to consider the counterclaim. On that day, the defendant did not appear.The Court decreed the counterclaim.

3. The plaintiff filed I.A.No.1108 of 2014 under Order 9 Rule 9 of the Code of Civil Procedure (CPC), for setting aside the dismissal of the suit along with I.A.No.1109 of 2014 for condonation of the delay of 1221 days in filing the application. He also filed I.A.No.1103/2014 under Order 9 Rule 13 to set aside the ex parte decree in the counter claim along with I.A.No.1104 of 2014 to condone the delay of 974 days in filing the petition. The trial Court dismissed the applications. The plaintiff challenged the orders passed by the trial Court by filing CMA.Nos.74/2017 & 4/2018 before the Additional District Court-I, Mavelikkara, which confirmed the orders passed by the trial Court.These orders are under challenge in these original petitions.

4. The common pleading set up by the plaintiff is that the plaintiff was undergoing treatment for heart complaints. He had to undergo a bypass surgery. Therefore, he failed to contact his counsel and give necessary instructions. The non-appearance of the plaintiff before the Court on the day scheduled for trial of the case was not due to his willful laches or negligence. The plaintiff has serious contentions in the original suit as well as in the counter claim.

5. The defendant resisted the applications, contending as follows:-

The averment of the plaintiff that he was undergoing treatment for cardiac complaint is false. Defendant No.1 died before the disposal of the case, and hence, the suit against him had already been abated. After the dismissal of the suit and passing of the ex parte decree in the counterclaim, the defendant filed an execution petition to execute the decree. Notice was served on the plaintiff on the execution petition. After getting notice of the execution petition, the plaintiff appeared in the execution petition through a lawyer. Subsequently, on 17.9.2012, the Court set him ex parte and passed an order for delivery of the property. The Amin reached the property on 30.5.2014 to effect the delivery. The defendant obtained possession of the property on 30.05.2014 itself. The present applications had been filed three months after the date of delivery of the property. The plaintiff did not undergo bypass surgery as pleaded. He was fully aware of the decree passed against him and the dismissal of the suit.

6. The plaintiff gave evidence as PW1. Exts.A1 to A3 were marked on his side. The trial Court held that the plaintiff failed to prove Exts.A1 to A3 medical prescriptions and adduce any evidence to suggest that he had undergone bypass surgery in 2011. Consequently, the trial Court held that the plaintiff failed to establish sufficient cause for condoning the delay. Yet another observation of the trial Court is that the plaintiff had not even taken steps to implead the legal representatives of the deceased on record within the time prescribed. The trial Court had taken note of the fact that the plaintiff had filed vakalath before the execution court in E.P.No.119/2012, and he was present at the time when the Amin effected delivery of the property. The trial Court further observed that the plaintiff received notice in the petition seeking delivery in 2012. But, he did not take steps to set aside the ex parte decree in the counter-cla