The need for genuine and acceptable reasons for non-appearance, and the consequences of false statements in delay condonation applications.

1. The petitioner is the defendant in a suit for specific performance filed by the respondent herein. He is aggrieved against the order of the court below in rejecting his application filed under section 5 of the Limitation Act, seeking to condone the delay of 369 days in filing a petition to set aside the exparte decree passed in the said suit on 16.06.2010.

2. Short facts for consideration in this civil revision petition are as follows: The plaintiff/respondent herein filed O.S.No.187/2009 on the file of the District Court, Thiruvallur against the petitioner for a specific performance of an agreement of sale dated 28.07.2005. It is his case that the petitioner agreed to sell vacant land measuring an extent of 50 cents and comprised in Survey No.1460/2 situated at Lakshmipuram Madura, Mahavaram Village, Ambattur Taluk, Thiruvallur District for a total sum of Rs.60,00,000/- by receiving an advance amount of Rs.50,000/-. It is his further case that on 31.10.2005, a further sum of Rs.10,00,000/- was paid by cash to the defendant. Thereafter, the defendant failed to produce the documents such as Patta, Chitta and Adangal as well as the Death Certificate of one Muniyammal. Even though the plaintiff was willing to perform his part of contract, the defendant avoided the completion of sale. Therefore, the plaintiff issued a legal notice on 18.03.2007. In the meantime, when the defendant was trying to alter the nature of the suit property, he filed one more suit in O.S.No.167/2007 on the file of the District Munsif Court, Thiruvotriyur for permanent injunction and also for mandatory injunction against the defendant. As the defendant/petitioner failed to execute the sale deed, the plaintiff filed the above said suit for specific performance as well. In the said suit, an exparte decree came to be passed on 16.06.2010. Consequent upon such exparte decree, the plaintiff filed E.P.No.144/2010 for execution of the said decree. On 14.12.2010, notice in the E.P. was served on the petitioner/defendant. Thereafter, he filed an application under section 5 of the Limitation Act on 21.07.2011, seeking to condone the delay of 369 days in filing the set aside application. The court below rejected the said application and aggrieved against the same, the present civil revision petition is filed by the petitioner.

3. Heard Mr.K.Balaji, learned counsel appearing for the petitioner and Mr.T.V.Ramanujam, learned senior counsel appearing for the respondent.

4. It is contended by the learned counsel for the petitioner that the petitioner had given instruction to his counsel at lower court only to file set aside petition in the suit. However, the said counsel instead of filing a petition to set aside the exparte decree, filed his vakalat in the E.P. and contested the same. W hen the respondent/plaintiff had already filed a suit in O.S.No.166/2007 for permanent injunction, the present suit filed by him for specific performance is barred under Order 2 Rule 2 C.P.C., apart from the fact that it is also barred by limitation. In support of his submission, the learned counsel for the petitioner relied on the following decisions,

i. 1996 (1) L.W.88,Shoba Viswanathan v. D.P.Kingsley;

ii. 2007(4) CTC 449, Arun Alexander Lakshman v.A.P.Vedavalli;

iii. 2009(5) AIR KAR R 135 (SC), State of Karnataka v. Y.Mohideen Kunhi (Dead) by L.Rs. & Others;

5. Per contra, the learned senior counsel appearing for the respondent submitted as follows: The reasons assigned by the petitioner before the court below in the petition to condone the delay, are found false and once it is found so, the court cannot condone the delay as has been rightly done in this case. The suit filed in O.S.No.166/2007 by the respondent/plaintiff was already decreed on 14.12.2007 and the petitioner had suppressed this fact while filing the present application before the court below. Mere making an allegation against a counsel cannot be a ground for condoning the delay. The petitioner had not proved