Lack of substantiated reasons for delay in filing a petition to set aside an ex-parte decree may indicate lack of diligence and intention to drag on proceedings.

ORDER :

[Prayer: Civil Revision Petition filed under Section 115 of C.P.C., against the fair and decreetal order dated 26.07.2016 made in I.A.No.432 of 2016 in O.S.No.332 of 2004 on the file of the Principal District Munsif Court, (Motor Accident Claims Tribunal), Cuddalore.]

(The matter is heard through 'video conferencing')

This Civil Revision Petition is filed against the judgment and award dated 26.07.2016 made in I.A.No.432 of 2016 in O.S.No.332 of 2004 on the file of the Principal District Munsif Court, (Motor Accident Claims Tribunal), Cuddalore.

2. The petitioners are defendants 2 and 3 in O.S.No.332 of 2004 on the file of the Principal District Munsif Court, (Motor Accident Claims Tribunal), Cuddalore. Originally, the respondents 1 to 4 filed the said suit against one V.Durai for permanent injunction restraining him from interfering with their peaceful possession and enjoyment of the suit properties. Pending suit, the said V.Durai died and the petitioners and respondents 5 and 6 who are his legal heirs were brought on record as defendants 2 to 5 respectively in the suit. The suit was posted for final hearing. P.W.1 was examined. The counsel for the petitioners and other defendants did not cross examine P.W.1 and reported no instructions. Again, Court issued notice to the petitioners and other defendants. Notice was served on the 1st petitioner and notice on the 2nd petitioner and respondents 5 and 6 were served by substitute of service. Inspite of service of notice, the petitioners and others did not appear and contest the suit. The learned Judge set the petitioners and other defendants as ex-parte and passed ex-parte decree on 15.10.2014. The petitioners and 6th respondent filed I.A.No.432 of 2016 under Section 5 of the Limitation Act to condone the delay of 470 days in filing the petition to set aside the ex-parte decree passed against the petitioners and 6th respondent on 15.10.2014.

3. According to the petitioners, the 1st petitioner was suffering from Jaundice and was taking native treatment. She could not move from bed and contact the Advocate. After recovery, when she contacted the Advocate, he informed that ex-parte decree was passed against the petitioners on 15.10.2014. The petitioners have good case on merits and they have not been careless or negligent. If ex-parte decree is not set aside, they will be put to irreparable loss and hardship and prayed for setting aside the ex-parte decree.

4. The respondents 1 to 4 did not file counter and they were set ex-parte. When the application was taken up for hearing, there was no representation for both the petitioners and respondents and they were set ex-parte. Considering the averments in the affidavit and case diary, the learned Judge dismissed the application, holding that the reason given by the petitioners are not true and the petition is filed only to drag on the case.

5. Against the said order of dismissal dated 26.07.2016 made in I.A.No.432 of 2016 in O.S.No.332 of 2004, the petitioners have come out with the present Civil Revision Petition.

6. Heard the learned counsel appearing for the petitioners as well as the respondents 1 to 4 and perused the entire materials available on record.

7. Though notice has been served on the 6th respondent and her name is printed in the cause list, there is no representation for her either in person or through counsel.

8. From the materials on record, it is seen that the petitioners have filed I.A.No.432 2016 to condone the delay of 470 days in filing the petition to set aside the ex-parte decree dated 15.10.2014. It is the case of the petitioners that the 1st petitioner was suffering from Jaundice, taking native treatment, was bedridden and could not contact her Advocate. When she recovered and contacted her Advocate, he informed that ex-parte decree was passed on 15.10.2014 in the suit, against the petitioners. The affidavit filed by the petitioners in support of the present application is bereft of necessary particulars. The 1st p