The adequacy of explanation for delay is the criterion, and the court should adopt a liberal approach to avoid miscarriage of justice.

1. This revision has been filed by the first defendant against the order refusing to set aside the ex parte decree. The respondent and another who died pending the suit filed O.S. No. 623 of 1986 before the District Munsif, Mettur for the relief of declaration and recovery of possession. Though other defendants were made party to the suit, from the plaint averments it is seen that they are only proforma parties; the relief actually sought is against the petitioner herein. The suit was originally filed before the District Munsif, Mettur. It was subsequently transferred to the District Munsif, Omalur where it was taken on file as O.S. No. 12 of 1996. The petitioner was set ex parte on 02.06.1998. He filed an application with a delay of 97 days, but without an application under Section 5, Limitation Act. The learned District Munsif, Omalur refused to set aside the ex parte decree and on appeal this order was confirmed by the learned Subordinate Judge, Mettur, against which this revision has been filed.

2. The learned Counsel for the petitioner is aggrieved on two counts. He would submit that one of the reasons for dismissing his application is that the petition was not accompanied by an application under Section 5 of the Limitation Act. He would submit that the insistence of a formal application under Section 5 of the Limitation Act would be a over-pedantic, hyper-technical approach which would defeat the cause of justice and for this preposition, he relied on the decisions reported in Meghraj v. Jesraj Kasturjee, A.I.R. 1975 Mad. 137 = 87 L.W. 863 and T. Balasundaram v. R. Palaniswamy, 1996 T.L.N.J. 49, wherein this Court has held that a written application for condonation of delay is not necessary and the Court should adopt a liberal approach and give reasonable opportunity to the party to mend matters in order to avoid miscarriage of justice. The other ground raised by the learned Counsel for the petitioner is that the Courts below ought to have accepted the reason given by the petitioner for not being present on the relevant dates of hearing and that ultimately the cause of justice should not suffer and for this he relied on Collector, Land Acquisition, Anantnag v. Katiji, A.I.R. 1987 S.C. 1353 = 100 L.W. 676, where again the Supreme Court stressed the necessity for Courts to adopt a liberal approach which will be guided by the fact that normally a litigant would not stand to benefit by approaching the Court belatedly; refusing to condone the delay may result in a meritorious matter thrown out at the threshold; and explanation of delay should be considered in a pragmatic manner; and substantial justice and technical considerations when pitted against each other the former should be preferred; and ultimately Courts should exercise their power not to legalize injustice but to remove injustice.

3. In the decisions relied on by the learned Counsel for the petitioner where this Court has considered whether a written application for condonation of delay is necessary, it is clearly laid down that under explainable circumstances, appeal or application when filed in Court without a formal petition for condoning the delay, the Court may entertain the same and give opportunity to the aggrieved party to mend matters. If this had been the only ground for dismissing the petition, the petitioner may have had a stronger case in this revision. But a perusal of the orders of both the Courts would show that while nothing the absence of a formal application they have also considered in detail the adequacy of the explanation given by the petitioner for his absence on the relevant date and for his approach belatedly. In the affidavit filed in support of the petition this is what the petitioner has stated:

Tamil

Therefore, according to the petitioner he did not get any information properly after the suit had been transferred to the District Musif, Omalur and got a letter from his lawyer regarding the passing of the ex parte decree just two