Condoning the delay under Section 5 of the Limitation Act should not take away legitimate accrued rights of the other party or a third party, and divorced persons are entitled to marry again after the statutory period stipulated in the Act.

1. Heard the learned counsel appearing for the petitioner as well as the learned counsel appearing for the respondent.

2. This Civil Revision Petition has been preferred under Article 227 of the Constitution of India challenging the order dated 09.12.2010 made in I.A. No.58 of 2009 in H.M.O.P. No.45 of 2008 on the file of the Subordinate Judge, Dharapuram.

3. Learned counsel appearing for the petitioner submitted that the petitioner being the husband of the respondent filed an H.M.O.P. No.45 of 2008 before the court below under Section 13 of Hindu Marriages Act seeking divorce. In spite of service of notice, the respondent herein was called absent and set exparte. Based on the exparte evidence, the court below allowed the petition and granted divorce in favour of the petitioner herein. However, the respondent herein filed I.A. No.58 of 2009 under Section

5 of Limitation Act and Section 151 of C.P.C. to condone the delay of 389 days in filing the petition to set aside the exparte decree.

4. According to the learned counsel appearing for the petitioner, the delay was not satisfactorily explained by the respondent herein. However, the court below liberally allowed the petition which would prejudice the rights of the petitioner herein. Learned counsel further contended that after the exparte order, the petitioner herein married another lady as there was no legal bar in solemnizing the subsequent marriage after the decree of divorce passed by the court below.

5. Per contra, the learned counsel appearing for the respondent submitted that the petitioner has not stated anything about the name and other details of the alleged second marriage with another lady. Hence, the said defence cannot be accepted as true. According to the learned counsel appearing for the respondent, the impugned order was passed by the court below by exercising its judicial discretion, whereby the delay has been condoned by the court below.

6. In support of his contention, the learned counsel appearing for the petitioner relied on the following decisions rendered by the Supreme Court and this Court:

In Parimal vs Veena @ Bharti, 2011 (4) MLJ 540 (SC), the Hon'ble Supreme Court has held that sufficient cause must be shown for allowing the petition filed under Section 5 of the Limitation Act along with the petition to set aside the exparte decree under Order IX Rule 13 CPC. In the aforesaid decision, the Hon'ble Apex Court has held that the matter does not fall within four corners of Order 9 Rule 13 CPC and the Court has no jurisdiction to set aside the exparte decree. In the aforesaid decision, the Hon'ble Apex Court has held thus:

"Sufficient cause is a question of fact and the Court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a strait-jacket formula of universal application."

In this case, it is seen that the court below has exercised its discretion liberally holding that sufficient cause was shown and allowed the petition in favour of the wife who is the respondent herein so as to dispose the HMOP, on merits.

In Murugan and another vs K. Elumalai and another, 2010 4 Law Weekly 180, this Court has held that blaming the lower court counsel to condone the delay of 586 days would not be accepted, after service of notice to the petitioners therein. Hence the view of the court below in dismissing the petition filed under Section 5 of Limitation Act, was accepted by this Court as per the decision cited above. In the instant case, having accepted the plea of the wife who is the respondent herein, the court below found that there was sufficient cause to condone the delay of 389 days and accordingly the petition was allowed by a conditional order, so as to dispose the H.M.O.P., on merits. Learned counsel for the respondent submitted that the conditional order passed by the court below was also complied with by the respondent herein.

In Vijayalakshmi vs Kannappan, 2010 (2) CTC 654, this Court has held