Liberal exercise of discretion burdened with an obligation to test the bonafide for condoning the delay.

A.P.Ramasamy, the petitioner is the first defendant in the suit.

2. Dhanalakshmi, the respondent herein, the sister of the petitioner, filed the suit for partition of 1/3 share in the suit property. The case was adjourned on various dates, giving time for the petitioner/first defendant to file written statement. Despite that, no written statement was filed. Hence, the suit was decreed ex-parte. After a delay of 342 days, the petitioner filed an application under Section 5 of the Limitation Act to condone the said delay to set aside the ex-parte decree. The said application was dismissed. Hence, the above civil revision petition.

3. According to learned counsel for the petitioner, the letter sent by the counsel asking the petitioner to go and meet the counsel to file the written statement, was not served on him, as he shifted his residence to some other place and the same returned to the counsel himself and when the petitioner/first defendant approached the lawyer, he was informed about the ex-parte decree and as such, the delay was not due to his negligence nor out of any mala-fide reasons.

4. The trial Court, accepting the objection raised by the respondent/plaintiff, would hold that despite several opportunities given to the petitioner for filing the written statement, those opportunities have not been availed of. Ultimately, he was set ex-parte and on 24-8-2000, the ex-parte decree was passed. After two years, he filed an application to condone the delay and as such, the prayer cannot be granted.

5. Challenging the finding of the trial Court, learned counsel for the petitioner, on the strength of the decisions reported in 2000 (III) C.T.C. 727 (SUBRAMANIAM.C. vs. TAMIL NADU HOUSING BOARD) and AIR 1998 SC 258 (MALKIAT SINGH vs. JOGINDER SINGH), would submit that the petitioner, admittedly did not receive the letter sent by the counsel and as such, the application for condoning the delay ought to have been allowed, especially when there is no mala-fide reason for the delay.

6. Learned counsel for the respondent, while justifying the impugned order, on the strength of the decisions reported in 2001 (2) M.L.J. 734 (RELIANCE INDUSTRIES LIMITED vs. RAJKUMARI) and 2002 (1) M.L.J. 60 (M/S.K.M.PATEN vs. SELVARAJ), would submit that the reasonings given in the impugned order are perfectly valid and the grounds mentioned in the application to condone the delay, are not bona-fide.

7. I have carefully considered the submissions made by learned counsel for the parties and also gone through the impugned order.

8. It is settled law as laid down in the decisions referred to above that in considering the application filed under Section 5 of the Limitation Act, the Court should exercise the discretionary power conferred under Section 5 of the Limitation Act liberally. But even while liberally exercising the discretion, the Court is burdened with the obligation to test the bona-fide of the reason placed by the litigant, which should not unnecessarily cause relative hardship of the respondent also. The rules of limitation are not meant to destroy the rights of the parties, but they are meant to see that the parties do not resort to dilatory tactics to seek their remedy promptly. Unless a party shows that he is put to manifest injustice or hardship, the discretion exercised by the lower Court is not liable to be revised. If the explanation does not smack of mala-fides or it is put forth as part of a dilatory strategy, the Court must show utmost consideration to the suitor. If the delay was occasioned by party deliberately to gain time, then the Court should lean against acceptance of the explanation and while condoning the delay, the Court should not forget the opposite party altogether. Length of delay is no matter, acceptability of explanation is the only criterion. A Court granting indulgence must be satisfied that there was diligence on the part of the appellant and that he was not guilty of any negligence whatsoever. "Sufficient caus