A petitioner must show sufficient cause and diligence in legal representation to set aside an ex parte decree.

ORDER

The revision petitioner was the sole defendant in O.S.No. 80 of 2015 on the files of the Munsiff Court, Mavelikara filed by the respondent, for eviction, recovery of possession and arrears of rent. The suit was decreed ex parte on 19.01.2017. The petitioner filed I.A. No. 2899 of 2018 under Order IX Rule 13 of the Code of Civil Procedure , 1908, seeking to set aside the ex parte decree. Since there was a delay of 710 days in filing the petition, he filed I.A. No. 2900 of 2018 under Section 5 of the Limitation Act , seeking to condone the delay.

2. It was contended by the revision petitioner that he had engaged a counsel to appear for him in the suit. However, the counsel did not update the petitioner about the progress of the suit. It was only when the petitioner received notice in the execution petition that he came to know about the ex parte decree. Therefore, the petitioner could not file the written statement. Accordingly, he prayed for condonation of the delay and to set aside the ex parte decree.

3. The respondent/plaintiff filed an objection to the above interlocutory applications stating that the contention of the petitioner that he came to know about the ex parte decree only on receiving notice in the execution petition is not correct. Further, the petitioner has not stated in his affidavit the name of the counsel with whom the case was entrusted. It is further stated that the petitioner has not stated as to what prevented him from contacting the counsel till he received notice from the Execution Court. The learned Munsiff found that non mentioning the name of the counsel with whom the petitioner has entrusted the case, in the affidavit, is suspicious. The petitioner did not adduce evidence to prove the truth and bona fides of the reasons stated by him. The learned Munsiff found that no sufficient cause had been set forth to condone the delay or to set aside the ex parte decree and dismissed both the applications.

4. Aggrieved by the common order of the learned Munsiff, the petitioner preferred C.M.A. No.45 of 2022 before the Additional District Court - I, Mavelikara. It was contended before the learned District Judge that there is yet another case filed subsequently as O.S. No. 93 of 2019 by the respondent against the petitioner and others, for declaration of title, recovery of possession, to recover rent from the petitioner herein/3rd defendant in the said suit and to restrain the 2nd respondent therein from creating further document with respect to item No.2 of the plaint schedule property therein. The learned District Judge found that the petitioner has no case that he had not received summons in the suit and that he had not disclosed the name of the counsel with whom he had entrusted the case and that the reasons shown for condoning the delay and for setting aside the ex parte decree are not satisfactory. The learned District Judge also observed that the petitioner can very well agitate his grievance in O.S. No.93 of 2019 and even if the ex parte decree is set aside, the said decree would be subject to the result of the said suit. Finding no merit, the learned District Judge dismissed the Civil Miscellaneous Appeal. Challenging the common order of the learned Munsiff in I.A. Nos. 2899 of 2018 and 2900 of 2018 and the judgment of the learned District Judge in C.M.A No.45 of 2022, this Civil Revision Petition is filed.

5. Heard Sri.S.K. Saji, the learned counsel for the revision petitioner and Sri.T. Sivadasan, the learned counsel for the respondent.

6. It is contended that the petitioner has shown sufficient and satisfactory reasons to condone the delay and to set aside the ex parte decree. It is further contended that the title of the shop room itself is under challenge. According to the petitioner, he had entrusted the case to a counsel and the counsel failed to communicate the progress of the suit to him and he came to know about the dismissal of the suit only when he received notice in the execution petition