IMPORTANT POINT
Illness as a valid reason for non-appearance, subsequent developments in the case, and the need to provide an opportunity for the petitioner to contest the matter are valid grounds for delay condonation and setting aside an ex-parte decree.

JUDGMENT :

(Prayer : Civil Revision Petition has been filed under section 115 of the Civil Procedure Code, to set aside the fair and decreetal order in IA No.02 of 2021 in OS No.67 of 2019, dated 19/10/2023 on the file of the 1st Additional District Judge, Tuticorin, Tuticorin District.)

1. This Civil Revision Petition has been filed seeking to set aside the fair and decreetal order, dated 19/10/2023 passed in in IA No.02 of 2021 in OS No.67 of 2019, dated 19/10/2023 by the 1st Additional District Judge, Tuticorin, Tuticorin District.

2. The facts in brief:-

Suit in OS No.67 of 2019 was filed by the respondent herein seeking the relief of specific performance and alternative prayer for returning the principal amount with subsequent interest and for costs.

3. The petitioner herein received the summon, but failed to appear before the trial court, on 04/09/2019. So ex-parte decree was passed. To set aside the ex-parte decree, a delay occurred about 576 days. To condone the delay, he filed a petition under section 5 of the Limitation Act. That came to be dismissed by the trial court by the impugned order.

4. Against which, this civil revision petition is preferred.

5. Heard both sides.

6. As mentioned above, the main suit is one for specific performance on the basis of the agreement. The suit was posted, on 04/09/2019 for the appearance of the petitioner. On that date, due to illness he was admitted in the hospital, unable to appear before the trial court, either through the advocate or in person. The pandemic period also intervened. So he was set ex-parte and the ex-parte decree was passed, on 10/01/2020. After receiving the legal notice only in the month of 2021, he came to know that ex-parte decree was passed. Apart from the above said reason for the delay, he has also mentioned various facts in the affidavit, which according to him, it is relevant for consideration.

7. The suit property originally belongs to one Thangavel. He died leaving his two sons namely Madasamy and Muniyasamy and one daughter by name Chellathayammal. Chellathayammal filed a suit for partition in OS No.57 of 1999. A preliminary decree was passed, on 17/12/2004 declaring that Chellathayammal is entitled to 1/3th share.

8. Against which, appeal was preferred by Madasamy in AS No.38 of 2005. That was allowed. Decree was set aside. Second appeal was preferred by the Chellathayammal in SA No.178 of 2006. That was allowed, on 27/09/2012.

9. In the meantime, the plaintiff and the defendant entered into a sale agreement. Muniyasamy is the first defendant in OS No.59 of 1999. Maniyasamy is having five sons and two daughters. So the defendant is having only 1/21 share in the suit property. He cannot execute the sale deed in respect of 1/5th share. So on that account also, he wants the main suit to be decided on its own merit. That was resisted by the plaintiff by filing counter stating that no proper reason is assigned. The trial court, after hearing both sides, observed that no proper document to show the illness was filed, so the delay cannot be condoned.

10. From the preamble portion of the order, it is seen that the suit in OS No.57 of 1999 was pending on the file of the Sub Court, Tuticorin. The present agreement alleged to have been entered into between the parties. Pending the above said process, the present revision petitioner alleged to have agreed to sell his 1/5th share in the suit property. But by virtue of the decree passed in OS No.57 of 1999. In SA No.178 of 2006, Chellathayammal was declared that she is entitled to 1/3rd share. The defendant namely Jeyagopal is one of the legal heirs of the Muniyasamy. According to the revision petitioner, he is entitled for 1/20th share and not 1/5th share. He cannot execute the sale deed for 1/5th share as decreed by the trial court. So, according to him, the matter must be tried by giving opportunity to put forth his plea.

11. It appears that the plaintiff has not taken any steps to amend the decree, in pursuance of the decr