The court emphasized the distinction between the considerations for condoning the delay in filing and representation, and considered the timely filing of the application under Order 9 Rule 13 C.P.C. and the petitioner's circumstances in allowing the condonation of delay.

This Civil Revision Petition arises out of the dismissal of an application to condone the delay in representing the papers in an application to set aside the ex parte decree.

2. Heard Mr. S. Kamadevan, learned counsel appearing for the petitioner Mr. P. Valliappan learned counsel appearing for the respondent took notice on caveat.

Therefore, the revision itself was taken up for disposal in view of narrow scope of the controversy involved.

3. The respondent filed a civil suit in O.S. No. 387 of 1990 on the file of the District Munsif Court, Perambalur, for a decree of permanent injunction in respect of a pathway. Suit was decree ex parte, after the written statement was filed, on 210. 1999. The petitioners filed an application for setting aside the ex parte decree within time. But unfortunately, it was returned and represented after a long delay. The application in I.A. No. 362 of 2007 to condone the delay of 2602 days in representing the application to set aside the ex parte decree was dismissed by the Court below, by an order dated 111. 2007, compelling the petitioners to cone up with the present civil revision petition.

4. Though the delay in representing the application to set aside the ex parte decree, appears to be on the face of the record, huge, the petitioners deserve to be granted the indulgence of this Court, on account of the fact that the application to set aside the ex parte decree under Order 9 Rule 13 C.P.C. was filed within time. In the affidavit filed in support of the condone delay petition, it is stated by the petitioners that they were set ex parte at the time when the case was posted for cross examination. The petitioners have stated that the petitioner was working abroad and the petitioner, a lady, was residing alone. However, there was a theft in her house, forcing her to go to her mother’s place in the absence of her husband. Therefore, she had stated that the letters sent by her counsel did not reach her. Moreover, the only return, endorsed on the petition to set aside the ex parte decree, was that the counsel did not serve a copy of the petition on the counsel for the other side. Therefore, it appears to be the case where there was a mistake on the part of the counsel also.

5. It is repeatedly held by this Court that the consideration for condoning the delay in filing, is different from the consideration, that should weigh in the mind of the Court, while considering the application for condoning the delay in representation.

6. In such circumstances, the petitioners deserve to succeed, but with certain conditions. In view of the above, the civil revision petition is allowed. The order of the District Munsif, Perembalur in I.A.No. 362 of 2007 in O.B.No. 387 of 1990 is set aside and the application to condone the delay in representing I.A.No. 362 of 2007 is allowed on condition that the petitioners pay the costs of Rs.5,000/-(Rupees five thousand only) to the respondent on or before 12. 2008. In the event of the respondent refusing to receive, it will be open to the petitioners to deposit the costs before the Court below on or before 12. 2008. If the petitioners fail to make the deposit, the order passed by the Court below will stand confirmed. Upon the petitioner matting the deposit, the Court below shall number the application under Order 9 Rule 13 C.P.C., and proceed to dispose of it in accordance with law, within a period of two months from the date of receipt of a copy of this order. There will be no order as to costs. Consequently, connected M.P. is closed.