ORDER :

The defendants are the petitioners. The suit in OS No.438 of 2011 was filed by the respondent, who is the daughter of the first petitioner and sister of the second petitioner, seeking partition and separate possession of her 1/3rd share in the suit properties.

2. The same was resisted by the defendants/petitioners herein, contending that the properties are not joint family properties, therefore the plaintiff/respondent has no right to seek partition during the lifetime of the first defendant. It was also contended that the plaintiff has orally relinquished her rights to three items of properties. The suit came to be decreed ex-parte on 15.12.2014. The defendants came up with instant application in IA No.369 of 2017, seeking condonation of delay of 239 days in setting aside the ex-parte decree. The reason assigned for the delay is that close relatives had advised the respondent to withdraw the suit and settle the dispute. It is also claimed that the respondent had agreed to such a course and she maintained the very cordial relationship with the defendant till the end of August 2015.

3. The petitioners would further plead that only on 01.09.2015 when the respondent had proclaimed in the presence of close relatives that she had obtained the decree on 15.12.2014, the petitioners came to know about the ex-parte decree and immediately approached the counsel to have it set aside. The fact that the suit was allowed to be dismissed for default on 04.01.2013 was also cited as a reason for the defendants not following up the suit.

4. This application was resisted by the defendant contending that the application is a deliberate attempt to drag on the proceedings and deny the just share due to her. She also claimed that she had never agreed to withdraw the suit. The learned Trial Judge upon a consideration of the claims made by the parties held that the petitioners have not made out a sufficient cause for condoning the delay of 239 days in filing an application.

5. The learned Trial Judge chose to rely upon the judgment of the Hon’ble Supreme Court in Lanka Venkateshwaralu (died) by L.Rs. v. State of Andrapradesh and others reported in 2011 (3) LW 26, and the judgment of this Court in D.Sundaraj v. K.Ashok, reported in 2001 (1) TLNJ 1, in support of his conclusion that the term sufficient cause appearing in Section 5 of Limitation Act, must be strictly construed and the petitioners have not made out the cost for condonation of delay.

6. I have heard Mr.S.Kaithamalai Kumaran, learned counsel appearing for the petitioners and Mr.M. Guruprasad, learned counsel appearing for the respondent.

7. The Court must not only look into the sufficiency of the cause but the length of delay also matters. The delay is not very long, it is only 239 days. The Hon’ble Supreme Court in University of Delhi v. Union of India and others, reported in (2020) 13 SCC 745, has reiterated the law laid down by the Hon’ble Supreme Court in Collector, Land Acquisition, Anantnag & Another v. Katiji and Ors., reported in 1987 (2) SCC 107, wherein the Hon’ble Supreme Court has held that the Courts must be liberal in matters of delay.

8. The suit is one for partition by a daughter and it is being resisted by the father and the brother on the ground that some of the properties are not ancestral properties. It is also seen that the suit was allowed to be dismissed for default and thereafter restored. This conduct of the plaintiff gives credence to the claim of the defendants/petitioners herein, that there was a negotiated settlement between them. It is also averred that one of the counsel for the defendants became a member of parliament and other was appointed as a judicial officer which led to the delay. A comprehensive analysis of the material that is available on record would show that the cause projected by the defendants for the delay is plausible. No doubt one can contend that every day's delay has to be explained, but the totality of the circumstances will have to be loo