Imposition of condition held onerous by High Court.

The defendant in the suit is the revision petitioner. The revision is directed against the order passed in I.A.No.1187 of 2000.

2. The revision petitioner filed an application to condone the delay of 28 days in filing the application to set aside the ex parte decree. The suit was posted on 28.8.2000 for cross-examination of plaintiff. As the defendant was absent on the day an ex parte decree was passed. It is alleged by the petitioner that as the defendant was unwell, he could not appear before the Court and that therefore the delay in filing the application may be condoned. Along with the said application he also filed an application to set aside the ex parte decree.

3. The respondent/ plaintiff filed counter stating that the petitioner evaded service of summons for hearing on 4.8.1998 and that again the suit was posted to 27.08.1998 for fresh summons and the suit was again adjourned to 16.10.1998, but he did not choose to file written statement on 12.7.1999 and therefore he was set ex parte and when the suit was posted for evidence, the petitioner filed I.A.No.1434 of 1999 to set aside the ex parte order and the ex parte order was set aside on 27.6.2000 and that on 18.8.2000, P.W.1 was examined in chief and on that day, when it was adjourned for cross-examination, the petitioner remain ex parte.

4. The trial Court on considering the materials has allowed the petitioner on the petitioner depositing 50% of the suit claim on or before 6.2.2001. Aggrieved by the said order, the defendant has filed revision.

5. It is contended by the appellant that the petitioner has shown reasons for the delay in filing the petition and that therefore the trial Court ought not to have imposed on onerous condition in condoning the delay. On the other hand, the learned counsel for the respondent contended that the petitioner was already set ex parte and that again the petitioner remained few ex parte for the second time and that the intention of the defendant is only to prolong the matter and that therefore, the order passed by the trial court has to be upheld.

6. It is seen that the petitioner has filed an application to set aside the ex parte decree. In this application filed to condone the delay of 28 days, the Court has to see whether the petitioner has made out sufficient cause for one delay. The trial Court has held that the petitioner has not produced any document to show that he was unwell. However, the trial Court was not prepared to dismiss the petition. On the other hand, the trial Court has observed that in order to give another opportunity to the petitioner, the Court has inclined to allow the petition on terms. The above approach of the trial Court is apparently erroneous, if the petitioner is adopting delaying tactics, the Court can impose condition in the main application. Having come to the conclusion that the petitioner should be given opportunity, it is not open to the trial Court to impose onerous conditions in the application to condone the delay of 28 days. The trial Court has observed that the petitioner should be given an opportunity to conduct the suit on merits. The above finding is not warranted in this application, since the main application to set aside the ex parte decree is pending. The trial Court was under the wrong impression that I.A.No.1187 of 2000 is an application to set aside the ex parte decree. In the above circumstances, I have no hesitation in holding that the trial Court has committed material irregularity in imposing condition in the application to condone the delay. Further, the condition directing the petitioner to deposit 50% of the suit claim is onerous. I hold that it is proper to impose nominal cost for condoning the delay. The civil revision petition is disposed of as follows.

7. The C.R.P. is allowed and the order of the trial Court directing the defendant to deposit 50% of the suit claim is set aside. The petition to condone the delay is allowed on the petitioner depositing cost of Rs.3,000 bef