Petitioner to be given on opportunity to defend his case.

1. The plaintiff in the suit in O.S.No.55 of 1994 has filed the above civil revision petition against the fair and decretal order dated 22.11.99 made in I.A.No.263 of 1999 by the Court of Subordinate Judge, Devakottai, on grounds, such as, (i) that the lower court has failed to appreciate that the delay had been properly explained by examination of the petitioner and the Doctor who treated him as well, besides causing production of the document marked as Exs.A-1 to A-10; (ii) that the application under Sec.5 should be viewed liberally, which the lower court has failed to consider; (iii) that the lower court has failed to note that the matter involves substantial determination of issues on facts and the same could not be casually dealt with: (iv) that the orders of the learned Subordinate Judge are opposed to the judgment of the Supreme Court reported in N.Balakrishnan v. M.Krishnamurthy N.Balakrishnan v. M.Krishnamurthy N.Balakrishnan v. M.Krishnamurthy (1999)1 MLJ. (S.C.) 114: (1998)7 S.C.C. 123. On such grounds, the petitioner would pray to set aside the fair and decretal order of the lower court.

2. Today, when the above matter has been taken up for hearing, in consideration of the pleadings by parties and having regard to the materials placed on record and upon hearing the learned counsel for both, what is assessed is that, seeking to condone the delay of 558 days, the petitioner has filed an interlocutory application in I.A.No.263 of 1999 before the lower court mainly on ground that during the period when the delay had occurred to file the necessary petition to restore the suit, he met major calamities in his life, resulting in serious setbacks in his habits and consequently in his health, thus not only physically his health got affected but also had prolonged mental agony, sufferings and afflictions, as a result of which he was not able to take steps in time to restore the suit, which was dismissed for default. The petitioner, pleading that he recouped himself from all his illness and then on the advice of his counsel, he came forward to file the petition, and hence, would pray to condone the said delay of 558 days that had occurred in filing the application to restore the suit.

3. On the other hand, the respondents would stiffly oppose this application before the lower court and this Court as well on ground that the reasons assigned on the part of the petitioner for the delay of 558 days to occur, are unbelievable and unacceptable, and hence, the application should not be allowed at any cost. On the part of the petitioner, he had not only examined himself as a witness entering into the witness box, but also examined his physician in confirmation of the ills that gripped the petitioner during the period when he was not able to prosecute the suit, nor filed the application to restore the same after having been dismissed for default.

4. The lower court, having remarked on the stage of the case stating that it is a case filed by the petitioner seeking declaration and permanent injunction and the defendant have not only filed their written statements, but also a counter claim and when the case was posted on 25.7.1997, since the petitioner did not attend to the court, the lower court had dismissed the suit for default, and that thereafter, only with a delay of 558 days, the petitioner had come forward to file the application under Sec.5 of the Limitation Act, seeking to condone the said delay on grounds that he got the worst affected in his private life which preyed heavily in his mind, resulting in himself adopting evil habits, consequent to which, his mental health became affected, and hence, he was not in a position either to prosecute the case, or to file the application in time to restore the suit dismissed for default.

5. Even though convincing reasons have been thus assigned on the part petitioner himself getting into the box to explain his state of mental health, and having examined his physician who trea