The main legal point established in the judgment is the importance of lack of negligence, deliberate inaction, or malafides on the part of the applicant while seeking condonation of delay, as well as the need to avoid causing relative hardship to the respondent.

Whether the Order declining to condone the delay of 586 days in filing the Petition to set aside the exparte Decree suffers from any perversity or illegality, calling for interference, is the short point arising for consideration in this revision.

2. Relevant facts are as follows:-

1. The Respondents have filed O.S.No.891/2002 on the file of Sub Court, Namakkal, [originally O.S.No.254/ 2001, Sub Court, Sankari], for partition of their 2/3 share in the suit properties against the Petitioner/D-1 and his sons and daughters, who are Defendants 2 to 5 respectively. Revision Petitioner is none other than brother of Respondents/ Plaintiffs. In the suit, the Defendants were duly served with suit summons and were represented by counsel. Inspite of several adjournments, Defendants have not filed Written Statement and hence the suit was decreed exparte on 111. 2003.

2. Respondents have filed I.A.No.422/2004 for passing Final Decree. In the Final Decree proceedings also, Petitioner was served through Court as well as privately. Other Defendants refused to receive notice through Court and were served by affixture as well as by Paper Publication. Petitioner has filed I.A.No.835/2000. When the matter was pending for passing Final Decree, Petitioner has filed I.A.No.838/2005 under Sec.5 of the Limitation Act to condone the delay of 586 days in filing the Petition to set aside the exparte Preliminary Decree. Petitioner has alleged that he was unwell and could not pursue the suit. Pointing out number of adjournments granted for filing Written Statement, and referring to the decisions – 1999(1) LW 739 [M. Balakrishnan Vs. M. Krishnamurthi], 2004(1) LW 406 [Ramasamy Vs. Dhanalakshmi], lower Court dismissed the application finding that the reason for delay has not been satisfactorily explained and no sufficient cause has been shown for the delay.

3. Heard both.

4.The learned Counsel for the Revision Petitioner has submitted that the Petitioner is aged more than 75 years and was taking treatment for his illness and he had shown sufficient cause for the delay by examining himself and the Court below has failed to consider the reason for the delay. It was further submitted that suit the being a partition suit, if delay is not condoned giving an opportunity to the Petitioner to contest the suit, the Petitioner would be subjected to great hardship.

5. Supporting the impugned Order, learned Counsel for the Respondent placed reliance upon 2005 (1)CTC 362 [Kasipalayam Town Panchayat rep. By its Executive Officer Vs. Arumugam and others]; 2001(2)MLJ 734 [Reliance Industries Ltd., rep. By Reliance Consultancy Services Ltd., Vs. M. Rajkumari]; 2004(1) LW 406 [A.P. Ramasamy Vs. Dhanalakshmi] and submitted that valid reasonings are given in the impugned Order and the grounds averred in the application to condone the delay are not bonafide. Taking me through dates and events, the learned Counsel further submitted that despite several opportunities, Petitioner has not chosen to file the Written Statement and taking note of the conduct of the Petitioner, Court below has rightly dismissed the Petition filed under Sec.5 of the Limitation Act.

6. I have carefully examined the records and considered the submissions made by the learned Counsel for the parties.

7. It is settled law that while considering the application filed under Sec.5 of the Limitation Act, Court should liberally exercise the discretionary power. Delay is to be condoned where there is no negligence, deliberate inaction or malafides on the part of the applicant. Even while liberally exercising the discretion, Court is to test the bonafide of the reason stated by the applicant. Exercise of discretion by the Court should not cause relative hardship to the Respondent. As held by the Supreme Court in 1998(7) SCC 123 [M. Balakrishnan Vs. M. Krishnamurthi], rules of limitation are not meant to destroy the rights of the parties, but they are meant to show that the parties do not resort to di