Defendant to be given opportunity to contest the suit on merits.

K. Gnanaprakasam, J.

1. The Revision petitioner is the first defendant in O.S.No.76 of 1999 on the file of Sub Court, Cheyyar who challenges the order dated 20.9.2001 passed in I.A.No.235 of 2001 by the Sub Court, Cheyyar.

2. In the suit filed by the respondent/plaintiff, the petitioner/first defendant was set export on 19.9.2000 and the first defendant came to know of the same only on 20.12.2000 and he has filed an application to set aside the ex parte decree dated 19.9.2000. As there was a delay of 93 days in filing the petition under order 9 Rule 13 of Civil Procedure to set aside the ex parte decree, the defendant also filed an application to condone the delay under Section 5 of the Limitation Act in I.A.No.49 of 2001. The said application was posted on 8.8.2001 and the defendant neither represented in person nor through his advocate. Therefore, the petition filed by the defendant was dismissed on 8.8.2001.The first defendant filed another application in I.A.NO.235 of 2001 to restore the order of dismissal dated 8.8.2001 and to restore the application inI.A.49 of 2001 and the same came to be dismissed by order dated 20.9.2001 and the said order is being impugned in this civil Revision Petiton.

3. Learned advocate for the petitioner/first defendant has submitted that the petitioner was affected by Jaundice and he could not move about and his advocate also misplaced the bundle on 8.8.2001 and only in those circumstances, neither the defendant nor his advocate appeared before the Court, which resulted in the dismissal of I.A.No.49 of 2001. In fact, the very same reasons were set forth in the affidavit filed by the petitioner in support of the petition filed to set aside the order of dismissal dated 8.8.2001.

4. Learned advocate for the respondent/plaintiff would submit that there was no truth in the averments stated in the affidavit filed by the defendant and only with a view to drag on the proceedings, the defendant remained ex parte and then filed an application to set aside the order of dismissal. The very same reasons were set out in the counter filed by the defendant before the trial Court also.

5. The Trial Court after taking into consideration the averments made in the affidavit and also in the counter filed by the plaintiff, came to the conclusion that the reasons set out in the affidavit by the defendant are not sufficient for his absence and dismissed the petition. Aggrieved by the same, the first defendant has filed the above Civil Revision Petition.

6. When the matter was taken up for enquiry, on a question by this Court whether the petitioner/defendant has filed his written statement, it was stated no and there upon this Court directed the petitioner/defendant to file a written statement to find out whether the defendant has got any statable defence. On such a direction, the defendant also filed a written statement and a copy of the same has been filed in the additional typed set of papers by the petitoner/defendant.

7. The respondent/plaintiff filed the suit for specific performance of contract of sale agreement executed by the defendant in favour of the plaintiff. The plaintiff has stated that several payments were made pursuant to the agreement but the defendant in the written statement would deny the payments said to have been paid by the plaintiff and also disputes the time granted in the agreement. I am not, for a moment to give any opinion or finding about the correctness of the payments said to have been made by the plaintiff or the denial made by the defendants. It is not for this Court to consider all those aspects in this Civil Revision Petition. What I could see from the written statement is that the defendant has got a statable case which he has to establish before the trial Court. But, however, the defendant remained ex parte and the application filed by him to set aside the ex parte order of dismissal along with an application to condone the delay was dismissed and an application file