Sufficient cause must be shown for condoning delay in legal proceedings; mere length of delay does not suffice.

ORDER

The defendant, in a suit for declaration and recovery of possession, is the revision petitioner.

2. The defendant suffered an exparte decree in O.S.34 of 2017 and took out an application under Order IX Rule 13 of Civil Procedure Code to set aside the exparte decree along with an application to condone the delay of

400 days in filing the said application.

3. The ground on which the applicant sought to set aside the exparte decree and also explain the delay is that the petitioner is not keeping good health and that she was under the impression that her counsel would be taking care of the matter.

4. The condonation of the delay was objected to by the respondent/plaintiff. In fact, the petitioner/defendant also chose to lead oral evidence before the trial court. In the cross-examination, the petitioner/defendant has, however, admitted that she was not suffering from any ailments and that she was in good health. She also stated that she is regularly contacting the counsel. Therefore, the trial court found that the petitioner has not come forward with true facts and the delay has not been sufficiently explained.

5. Learned counsel for the petitioner/defendant however submits that the suit being one for substantial reliefs, the petitioner would be put to serious hardship and he also relied on the decision of the Hon'ble Supreme Court in the case of N.Balakrishnan vs M.Krishnamurthy reported in (1998) 7 SCC 123 , where the Hon'ble Supreme Court has held that the court should be liberal in considering the application for condonation of delay and the length of delay should not come in the way of the court in exercising discretion in condoning the delay.

6. Per contra, learned counsel for the respondent/plaintiff submits that the suit itself was filed to recover encroached portion of about 45 sq.feet and the trial Court has rightly dismissed the application noticing the admission of the petitioner herself in the witness box, in the evidence adduced in I.A.No.4 of 2021. Learned counsel further states that the trial Court has also rightly found that the petitioner has not been diligent in following up the case and she cannot blame the counsel for the exparte decree being passed.

7. I have carefully considered the submissions made by the learned counsel on either side and perused the materials available on record.

8. Though the suit is for declaration and recovery of possession, in order to even avail an opportunity to contest the decree on merits, the petitioner has to first show that sufficient cause has been made out for non-

appearance which resulted in the exparte decree being passed.

9. Admittedly, in the present case, the petitioner, though now contends that she came to know about the exparte decree only after receiving notice in the execution proceedings and immediately, the application has been filed within a period of thirty days, in the application to condone the delay, the reasons assigned are that the petitioner was not keeping good health and therefore, she was not able to contact the counsel and further, the counsel have assured the petitioner that he would take care of the matter and therefore, the petitioner was not able to appear on the relevant dates which led to the exparte decree being passed.

10. However, the petitioner has chosen to examine herself in I.A.No.4 of 2021 in the enquiry stage and in cross examination, she has given up her own affidavit that she was suffering from illness and that she could not contact the advocate. Therefore, the affidavit filed for condonation of delay has been falsified by her own testimony. Placi