- (1.)THIS revision petition has been filed against the order dated 28.3.2008 passed by the Principal Subordinate Judge of Salem in I.A. No. 697 of 2007 in O.S. No. 205 of 2006 in disallowing the petition filed by the petitioner for condonation of delay of 334 days in filing the petition to set aside the ex parte decree.
(2.)THE case of the petitioners would run as follows:THE respondent/plaintiff had filed the suit in O.S. No. 205 of 2006 for specific performance on the basis of the alleged sale agreement. THE petitioners borrowed amounts from the respondent/plaintiff in the year 2002 and the respondent/plaintiff has obtained the sale agreement by coercion. THE respondent/plaintiff, in order to gain illegally and unlawfully by enforcing the alleged contract, had filed the suit for specific performance. After receipt of summons in the suit, the second petitioner/second defendant contracted the respondent/plaintiff through mediators and the respondent promised that he would withdraw the case. Believed his promise, he did not pursue the matter further and hence the written statement was not filed. After receipt of notice in the EP, the 2nd petitioner/2nd defendant came to know the false representations made by the respondent/plaintiff. THE mother of the second petitioner/defendant is 79 years of age and due to her ill health she could not attend the Court regularly and the suit was decreed ex parte on 12.12.2006. In order to establish their case, she filed written statement along with the petition to set aside the ex parte decree passed against them but the same was dismissed by the Subordinate Judge of Salem. Against the said dismissal, this Revision has been filed.
The case of the respondents would run as follows:The respondent denied the allegations made by the petitioners. The petition filed by the petitioners is not maintainable in law and on facts. The reason submitted by the petitioners to condone the delay of 334 days cannot be accepted because the suit was adjourned to 26.9.2006 for filing of counter affidavit. Again, it was adjourned to 31.10.2006, 28.11.2006, 5.12.2006 and lastly on 12.12.2006. On 12.12.2006 only, after giving several opportunity to the petitioners/defendants to contest the case, the suit was decided ex parte. Therefore, she prays the Court to dismiss the petition.

The lower Court had considered the case of both sides and had come to a conclusion of dismissing the claim of the petitioner seeking for condonation of delay of 334 days in filing the application to set aside the ex parte decree. Aggrieved by the said order, the Revision has been preferred by the petitioners.

(3.)HEARD Mr. T. Karunakaran, the learned counsel appearing for the petitioners and Mr. M. Venkatachalapathy, learned senior counsel appearing for K. Rajasekar, learned counsel for respondent.
The learned counsel for the petitioners would submit in his argument that the petitioners were the defendants before the lower Court and the suit was decreed ex parte on 12.12.2006 and, therefore, the petitioners applied for setting aside the ex parte decree 334 days in filing passed against them and there was a delay of such petition and they filed a petitioner for condonation of delay of said 334 days on the reasons that the petitioners were falsely given a promise by the respondent that they would report Settlement before the lower Court and the first petitioner was aged 79 years and he was affected by ill health during the said period and therefore, they could not pursue the case and the factum of passing ex parte decree was known to the petitioner only when they received notice in E.P proceedings filed by the respondent and the first petitioner is a senior citizen and the petition filed by the petitioners before the lower Court to condone the delay of 334 days was not considered and the lower Court had failed to give an opportunity to contest the suit without believing the words of the petitioners. He would draw the attention of the Court that a judgment of our Apex Court in between Collector, Land Acquisition Anantnag and Another v. Katji and Others AIR 1987 SC 1353 : (1987) 2 SCC 107 : 1987-1-LLJ-500 for the proposition of law that the Court had to adopt liberal and justice oriented approach in the case of condonation of delay sought to be condoned under Section 5 of the Limitation Act. He would also draw the attention of the Court to yet another judgment of our Apex Court in between N. Balakrishnan v. M. Krishnamurthy AIR 1998 SC 3115 : (1998) 7 SCC 446 : 1998 (2) CTC 533 for the same proposition of law. He would also cite a judgment of our Apex Court in between G.P. Srivastava v. R.K. Raizada and Others AIR 2000 SC 1221 : (2000) 3 SCC 54 for the principle that narrow and technical approach of the Court in the case of condonation of delay has to be avoided. He would also refer to a judgment of this Court in between Karunakaran v. Santha (2002) 2 MLJ 366 to the similar principle as enunciated by the Hon-ble Apex Court. He would, therefore, request the Court that the petitioners, who are aged and were cheated by the promise of the plaintiff/respondent, should have been given an opportunity to contest their case and therefore, the order passed by the lower Court has to be interfered with and to set aside. He would further submit that the lower Court had wrongly come to a conclusion that merely because time was obtained for filing written statement by the learned counsel for the petitioners before the lower Court, the petitioners are not entitled to have the condonation of delay caused in filing the petition to set aside the ex parte decree. Therefore, he would request the Court that revision petition may be allowed.