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2009 Supreme(Mad) 3139
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE V. PERIYA KARUPPIAH
Vijayakumar
Versus
Jothiammal
CRP.NPD.No.2800 of 2008 & M.P.No.1 of 2008
Decided on: 14-08-2009
For the Appellant:R. Meenal, Advocate.
For the Respondent:R. Gururaj, Advocate.
Failure to disclose material facts and non-disclosure of proceedings can undermine the bona fide of a plea for delay condonation.
Headnote:
Delay Condonation - Specific Performance - O.S.No.238 of 2002 - Summary
Fact of the Case:
The defendant filed a delay condonation application of 607 days to set aside an exparte decree passed by the lower Court in a suit for specific performance. The defendant claimed that he was not served with summons, entrusted the case to an advocate, and was unaware of the exparte decree until later.
Finding of the Court:
The Court found that the defendant had knowledge of the suit proceedings, execution proceedings, and delivery of possession, but failed to disclose these facts. The Court concluded that the reasons alleged by the defendant for condoning the delay in filing the application were not valid.
Issues: The main issue was whether the delay of 607 days in filing the application to set aside the exparte decree should be condoned.
Ratio Decidendi: The Court held that the defendant's failure to disclose important particulars regarding the case and the non-disclosure of execution proceedings and delivery of possession undermined the bona fide of the defendant's plea for delay condonation.
Final Decision: The Revision and Connected Miscellaneous Petition were dismissed with no costs.
This Revision has been directed by the revision petitioner, who was the defendant before the lower Court, against the order of dismissal of the application filed for condo-nation of the delay of 607 days in filing the application to set aside the exparte decree passed by the lower Court.
2. The respondent herein, as plaintiff, filed O.S.No.238 of 2002 before the lower Court for specific performance of the sale agreement entered into between the respondent herein/plaintiff and the petitioner/defendant. An exparte decree was passed against the defendant/revision petitioner herein by the lower Court. In filling the application to set aside exparte decree a delay of 607 days had been caused. Hence, the defendant/revision petitioner has filed I.A.No.110 of 2005 for condo-nation of delay of 607 days in filing the application to set aside the exparte decree. The said application was dismissed by the lower Court. Hence, the present revision has been preferred by the revision petitioner.
3. The averments in the application to condone the delay filed by the petitioner would run as follows:- The respondent had filed the suit against the petitioner for specific performance based on an agreement of sale. According to the respondent, the petitioner had entered into an agreement with the respondent to sell the properties of the petitioner. The petitioner was not served with summons in the suit. But, when the petitioner came to know about the case, he entrusted the papers to one Mr. Sundaramoorthy, Advocate, who was practising in Cuddalore. As he was mainly practicing on the criminal side, he, in his turn, entrusted the case to one Mrs. Gunavathy, Advocate. Whenever, the petitioner contacted Mr.Sundaramoorthy, he informed the petitioner that the matter was being taken care of. The petitioner believed that his interest would be protected by the said Advocate. But, on 211. 2004 the respondents husband came to the suit property and wanted to enter into the suit property. The petitioner prevented him. Then, the petitioner came to Cuddalore and he was able to gather information that an exparte decree had been passed against him and based on the exparte decree the respondent had secured a sale deed in his favour and had created evidence as if she had taken delivery of the property. Since the petitioner did not know about the exparte decree, he could not file an application to set aside the exparte decree in time. Hence, he filed the said application for condo-nation of delay of 607 days in filing the application to set aside the exparte decree.
4. In the counter filed by the respondent it has been contended as follows:-The application to condone the delay has been filed with incorrect and baseless averments. It is incorrect to state that the suit summons were not served on the petitioner. For nonappearance of the petitioner, he was set exparte on 11. 2002. Thereafter, the petitioner filed I.A.No.1 of 2003 to set aside the exparte order. The said application was allowed by the Court with a condition to pay the cost. For non-payment of the cost I.A.No.1 of 2003 was dismissed and the suit was decreed on 23. 2003. Thereafter, the respondent/plaintiff filed EP.No.96 of 2003 to execute the sale deed. The petitioner/defendant received EP summons from the Court, but he failed to appear. Hence, the sale deed was executed by the Court in favour of the respondent/plaintiff. Thereafter, the respondent/plaintiff filed a petition for delivery and in that proceedings also the petitioner/defendant failed to appear and hence, the delivery was ordered and in furtherance of that order, the respondent/plaintiff took delivery of the property and delivery was also recorded. Now the respondent/plaintiff is in possession and enjoyment of the suit property. The petitioner having kept quite all these days and failed to appear before the Court inspite of suit summons and the execution notice served on him, now comes with a vexatious petition to condone the delay o
