The right to contest a case on merits, as per Article 21 of the Constitution, should be granted, and the inconvenience caused to the parties must be compensated by costs.

JUDGMENT

(Prayer: Civil Revision Petition has been filed under Article 227 of the Constitution of India, against the fair and decreetal order dated 27.06.2014 made in I.A.No.503 of 2013 in O.S.No.89 of 2011 on the file of the Additional Sub Court, Tiruvannamalai.)

1. Against the dismissal of the petition to condone the delay of 123 days in filing the petition to set aside the ex parte decree, this Civil Revision Petition has been filed by the third defendant.

2. The facts of the case are that the respondent/plaintiff filed the suit for partition against the revision petitioner / 3rd defendant and others. The suit was posted on 11.02.2013 for filing written statement by the revision petitioner. On the said date, the revision petitioner neither appeared nor filed written statement and therefore, she was set ex parte on the same day. Thereafter, the petitioner filed an application to set aside the ex parte decree along with a delay of 123 days. The trial Court declined to condone the delay, against which, the third defendant has filed the present Civil Revision Petition.

3. The learned counsel appearing on behalf of the petitioner would submit that the petitioner was suffering from jaundice and stayed at Salem and took native treatment and therefore, she could not able to appear before the Court, which resulted in ex parte decree. Subsequently, she filed the present petition with the above delay.

4. The learned counsel for the petitioner would further contend that as far as the ex parte order is concerned, there is no time limit for setting aside the same and therefore, the petitioner is entitled to explain the delay only after passing of the exparte decree and the delay has been properly explained. Since the delay was neither wilful nor wanton, learned counsel prays to condone the same and allow this revision. In support of his contention, learned counsel relied on a decision of the this Court in the case of VENKATALAKSHMI @ RATHNAMMA vs. BAYAMMA reported in 2003 (1) CTC 603.

5. Though the respondent was served notice, he neither appeared in person nor through his counsel. Therefore, this Court has no other option but to proceed with the available materials.

6. Heard the learned counsel appearing for the petitioner and perused the materials available on record.

7. Perusal of the order passed by the trial Court would go to show that despite the grant of adjournments on 18 hearings starting from 11.08.2011 to 11.02.2013 the petitioner / 3rd defendant did not file written statement and that averment regarding treatment of jaundice for several months i.e. 123 days is utterly false and baseless.

8. There are two issues to be decided in this revision and the same are as follows;

“1.When the other defendants except the 3rd defendant contested the suit, whether the decree passed is a contested decree or uncontested (decree)?

2.Whether the dismissal of the application filed to condone the delay of 123 days is justified or not ?”

9. The suit is filed for the relief for partition. The plaintiff has claimed 1/6th share in the suit schedule property. According to the plaintiff, the defendants 1 to 4 are each entitled to 1/6th share and defendants 5 and 6 are together entitled to 1/6th share.

10. The written statement filed by the third defendant has been placed on record. Unfortunately, the application to set aside the ex parte decree did not mention anything about the merits in the claim of the third defendant in the suit. As the application was bereft of details regarding the same, the order passed by the trial court also did not discuss anything about the availability of the merits in the case of the third defendant. The issue to be considered as to whether the delay has to be condoned and an opportunity has to be given to the third defendant to contest the case on merits and would depend upon the nature and merits of the defence taken by the third defendant.

11. Before going into the merits of the matter, the legal issue has to be answered. In