ORDER :

Prayer: Civil Revision Petition is filed under Section 115 of the Civil Procedure Code, praying to set aside the fair and decreetal order made in I.A.No.1297/2016 in O.S.No.299/2006 on the file of the Principal District Munsif at Alandur.

The Civil Revision Petition has been filed against the fair and decreetal order made in I.A.No.1297 of 2016 in O.S.No.299 of 2006 on the file of the Principal District Munsif at Alandur.

2. The revision petitioner is the first defendant in the suit filed in O.S.No.299 of 2006. The first respondent instituted the suit for permanent injunction and the revision petitioner states that the revision petitioner was set ex-parte and an order was passed on 30.08.2010, due to the nonappearance of the learned counsel, who appeared for the revision petitioner before the trial Court. The revision petitioner states that an ex-parte order passed on 30.08.2010 was known to him only on 10.08.2014. Thus, he was not able to file a petition to set aside the ex-parte order within a period of 30 days and there was a delay of 1789 days in filing a petition for setting aside the ex-parte order.

3. The reasons stated for such a long delay is that the learned counsel, who appeared for the revision petitioner before the trial Court, filed another suit in O.S.No.333 of 2005 and in the said suit, the respondent/plaintiff is the defendant. Thus, the revision petitioner has drew an inference that the lawyer would have colluded with the other side in that suit and not attended the suit in which the revision petitioner is the first defendant.

4. However, to substantiate the said allegation, the revision petitioner has not stated anything nor issued any notice or sent a complaint to the Bar Council, if at all any misconducts or collusion is made. In the event of such a serious allegation of professional misconduct against a lawyer, the parties cannot make casual statements and they are expected to establish such statements with some material on record. Mere statement in this regard if made for condoning the delay of about 5 years cannot be accepted by the Courts. If at all the learned counsel appeared for the revision petitioner before the trial Court has cheated the revision petitioner or colluded with the other side and defeated the right of the revision petitioner, then the revision petitioner ought to have taken some action against the lawyer, who committed such misconduct of affecting his rights in the suit or otherwise.

5. In the present case, except by stating that the learned counsel for the revision petitioner appeared in another suit and not attended the suit, in which, the petitioner is the first defendant, there was no action taken nor notice was issued by the revision petitioner to the lawyer, who allegedly committed certain grave professional misconduct. Therefore, the said reason stated in the affidavit is only for the purpose of condoning the long delay of 1789 days and the said reason has not been substantiated by the revision petitioner.

6. That apart, the revision petitioner also not vigilantly pursued the suit, since the delay is about 5 years. It is not made clear why the revision petitioner had not contacted the lawyer for about 5 years, knowing the fact that the suit is pending before the Court concerned.

7. Thus, the reasons stated in the affidavit before the trial Court are insufficient to condone the enormous delay of 1789 days in filing the petition to set aside the ex-parte order.

8. The principles regarding the condonation of delay with reference to the judgments of the Constitutional Courts are elaborately considered by this Court in C.M.P.Nos.8358 & 8359 of 2018 in AS.SR.No.32087 of 2018 dated 09.12.2019 and the relevant paragraphs are extracted as under:

“10. In respect of said contentions, the learned counsel appearing on behalf of the respondent cited the judgment of this Court in the case of Zulaiha Syed Mohideen Vs. D.Visalakshi Ammal & Others reported in MANU/TN/2222/2013, wherein the Court