The court held that mere reliance on counsel does not excuse delay in litigation; sufficient cause must be demonstrated for each day of delay to condone it.

ORDER :

N.Sathish Kumar, J.

Challenging the order of the Trial Court dismissing the application filed to condone the delay of 1158 days in setting aside the exparte decree dated 07.03.2015, the present revision has been filed.

2. Brief background of the case is as follows:

2.a. The suit in O.S.No.42 of 2013 has been filed for relief of specific performance of agreement dated 10.05.2010. The said suit came to be decreed exparte on 07.03.2015. Therefore, the petitioners took up application to condone the delay of 1158 days in setting aside the exparte decree dated 07.03.2015. The reasons assigned by the revision petitioners before the Trial Court is that in the original suit, after receiving a notice in I.A.No.210 of 2013, they engaged lawyers namely Ms.Poorna Chandrika and Ms.Theresa. The petitioners were under bonafide belief that the above case has been pursued and taken care by their advocate. However, to their gross dismay, they came to know the fact of exparte decree only upon service of notice in E.P.No.35/2016. They came to know that the suit was decreed exparte on 07.03.2015, they have duly entered appearance in the said Execution Petition on 23.03.2016 immediately and undertook steps to obtain certified copies of the relevant documents in the above suit, in order to prepare and contest the case. The copy application has been complied with only in the month of August last week of 2016. Thereafter, they took steps to enquire into the veracity of the documents since they had commercial dealings with the first respondent. Thereafter, they filed a petition to set aside the exparte decree dated 07.03.2015, but the papers were returned on 11.11.2016 which was not intimated to the petitioners, they were under the impression that petition to set aside the exparte order and condone delay petition has been numbered, however, the previous advocate has taken the returned papers and did not inform represent the paper. Therefore, there was a delay. According to them, default committed in non appearance in the suit is neither willful nor wanton, but occasioned due to aforesaid reasons, which is beyond their control.

2.b. The respondents filed their counter objecting the petition on the ground that on receipt of summons in the suit, the petitioners appeared through their lawyer on 10.06.2013 and engaged separate advocates and took 11 adjournments for filing written statement in a span of 18 months. However, written statement has not been filed. The plaintiff filed an application in I.A.No.953 of 2014 for amendment of plaint, wherein, notice was ordered to the petitioners, despite service of notice, they remained exparte on 09.02.2015. Then, the suit was posted for exparte evidence and the plaintiff has been examined as PW1 and the suit was decreed on 07.03.2015. Thereafter, the petitioners appeared in execution proceedings after 7 months. Hence, opposed the application. The Trial Court, after considering the nature of reasons assigned held that the delay was not explained properly and dismissed the application. Hence, this revision.

3. Mr.V.Raghavachari, the learned Senior Counsel for the revision petitioners vehemently contended as follows:

a. that agreement relied upon by the plaintiff/first respondent, who seek specific performance is a created one;

b. alleged payment of consideration paid in cash in also highly improbable.

c. exparte decree dated 07.03.2015 does not contain any reasons with regard to the readiness and willingness on the part of the plaintiff;

d. only the lawyers appearing for the petitioners have not intimated properly, therefore, the exparte decree has been passed against them. Even in execution proceedings, when application has been returned, the same has not been represented by the lawyers. Therefore, the delay has occurred and thus, the delay is neither wilful not wanton on the part of the revision petitioners;

e. Since, the suit is instituted for a specific performance, the revision petitioners should be given an opportu