CHINNATHAYEE AMMAL Vs. MOTTAYA GOUNDER

JUDGEMENT

(1.) THIS civil revision petition is against an order of the learned District Munsif, Tiruvannamali passed in I.A.No.1086 of 1995 in O.S.No.1253 of 1990, dated 24.9.1996 condoning the delay of 526 days in filing the petition to set aside the ex parte decree dated 11.2.1994 passed in the above suit.

(2.) THE plaintiff is the petitioner herein and the second defendant is the respondent herein. THE parties are referred to as described in the suit. THE plaintiff filed a suit for maintenance against her husband, the first defendant and she also prayed for a charge over the suit properties standing in the name of the second defendant for due payment of maintenance amount. According to the plaintiff, the suit properties were alienated by her husband in favour of the second defendant with a view to defeat her maintenance claim in the suit. THEre is no dispute that summons in the suit were served on both the defendants and the second defendant was not present in the court on 11.2.1994 on which date the suit was posted for trial. Since the second defendant failed to appear before the court on that date, he was set ex parte and the suit was decreed. Hence, the second defendant, therefore, filed the petition on 29.8.1995 to condone the delay of 526 days in filing the petition to set aside the ex parte decree dated 11.2.1994 passed in the above suit on the ground that he was suffering from acute jaundice for twenty months, viz., January, 1994 to August, 1995 and he was confined to bed and he was taking native treatment in his village. THE second defendant also stated that after slight recovery in the month of August, 1995. he was away from his village and later he found the court notice affixed in his house and when he contacted his counsel, he was informed that he was set ex parte on 11.2.1994 and hence, he filed the petition to condone the delay of 526 days in filing the petition to set aside the ex parte decree dated 11.2.1994.

(3.) LEARNED counsel for the respondent, on the other hand, submitted that the trial court has exercised its discretion in condoning the delay and when the trial court found on the basis of evidence given by the second defendant that he was suffering from jaundice and when the trial court has exercised its discretion on the basis of that evidence, this Court sitting in revisional jurisdiction should not interfere with that discretion exercised by the trial court. LEARNED counsel for the respondent relied upon a decision of this Court in the case of Shoba Viswanathan v. D.P.Kingsley Shoba Viswanathan v. D.P.Kingsley Shoba Viswanathan v. D.P.Kingsley , (1996)1 L.W. 88 and submitted that in the interest of justice the court has the power to condone the delay in filing the petition to set aside the ex parte decree.