Aliyarukunju Abdul Salam v. Lakshmi Ammal Renjini

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **TUESDAY ,THE 04TH DAY OF DECEMBER 2018 / 13TH AGRAHAYANA, 1940** ## **CRP.No. 656 of 2014** **AGAINST THE JUDGMENT IN CMA 21/2008 of I ADDL.D.C., THIRUVANANTHAPURAM DATED 19-09-2009** **AGAINST THE JUDGMENT IN OS 12/2001 of SUB COURT, ATTINGAL** **PETITIONER/RESPONDENT IN CMA NO.21/2008 BEFORE ADDITIONAL - DISTRICT COURT 1, THIRUVANANTHAPURAM/COUNTER PETITIONER IN IA NO.157/2006/PLAINTIFF IN OS NO.12/2001 SUB COURT, ATTINGAL:** **ALIYARUKUNJU ABDUL SALAM, THUNDUVILAKOM VEEDU,VELLOOR,VELLOOR MURI, ANDOORKONAM VILLAGE,THIRUVANANTHAPURAM,PIN 695 584.** **BY ADV. SRI.M.P.RAMNATH** **RESPONDENT/APPELLANT IN CMA NO.21/2008 BEFORE ADDITIONAL DISTRICT COURT-1, THIRUVANANTHAPURAM/PETITIONER IN IA NO.157/2006/DEFENDANT IN OS NO.12/2001 SUB COURT, ATTINGAL: LAKSHMI AMMAL RENJINI, SUBRAMONIA VILASOM,VELLOOR,VELLOOR MURI,ANDOORKONAM VILLAGE,THIRUVANANTHAPURAM, PIN 695 584.** **BY ADV. SRI.G.S.REGHUNATH** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22.11.2018, THE COURT ON 4.12.2018 PASSED THE FOLLOWING:** CRP No.656/14 -:2:- ## **O R D E R** ## _**Shaffique, J.**_ The revision is filed by the plaintiff in OS No.12/2001 of the Sub Court, Attingal. The suit was filed seeking specific performance of a contract for sale of immovable property. An _ex parte_ decree came to be passed on 27/1/2003. The defendant filed IA No.1578/2006 seeking to set aside the _ex parte_ decree and to condone the delay of 1315 days in filing the application. The plaintiff filed objection _inter alia_ stating that summons and notice were served before the decree and even after the decree when the document was executed through Court. In all such proceedings, defendant had appeared through counsel and sought time to file objection. Therefore, the application is filed without any _bonafides_ . 2. Before the trial Court, defendant was examined as PW1 and she relied upon Exts.A1 to A3. The trial Court found that sufficient opportunity was granted to the defendant to contest the matter and that apart, after having received the CRP No.656/14 ## -:3:- notice in the Execution Petition, she did not file any objection and remained _ex parte_ . The decree-schedule property was delivered through Court proceedings and the plaintiff cultivated rubber saplings in the property which is in the yielding stage. It was found that the petitioner/defendant was fully aware of the delivery of the property and therefore the contrary contention cannot be accepted. Trial Court also found that the documents produced by her to indicate that she was suffering from Astma was not sufficient enough to explain the delay of 1315 days when it is proved that she was aware of the suit, the decree passed and also that the property had been delivered to the plaintiff. Hence it was found that there was no sufficient cause to condone delay. Accordingly, the application to set aside _ex parte_ decree was dismissed. 3. The defendant preferred an appeal before the District Court. By judgment dated 19/9/2009, the District Court observed that the suit being one for specific performance of contract for sale of immovable property, and though the written statement filed before the Court below were not accepted, it would show elements of bonafide on the part of the defendant and as it is CRP No.656/14 -:4:- seen that the absence was not wilful, the delay is to be condoned on payment of cost. Accordingly, the delay had been condoned on payment of cost of `3,000/-. On deposit of the above, the appeal was directed to be allowed setting aside the order passed by the trial Court. 4. Learned counsel for the plaintiff submits that the lower appellate Court did not consider the appeal on merits taking note of the contentions urged by the parties. It is pointed out that in a case where there is evidence to prove that summons in the suit has been served, and the plaintiff was aware of the decree passed, and still when no steps are taken to set aside the ex parte decree, and in the process, the plaintiff had taken delivery of the property, cultivated the same and improvements have started yielding, the lower appellate Court was not justified in setting aside the ex parte decree. Further, none of the materials had been considered by the lower appellate Court while setting aside the ex parte decree after condoning the delay, whereas the lower appellate Court had summarily allowed the application on payment of cost. The reason stated by the trial Court for dismissing the application to condone delay had not been CRP No.656/14 ## -:5:- considered by the lower appellate Court as well. 5. On the other hand, learned counsel appearing for the defendant submitted that though the suit for specific performance has been decided _ex parte,_ there is absolutely no consideration of the factual or legal matters while deciding the said case by the Court below. It is pointed out that the petitioner had clearly stated in her affidavit that she had entrusted the suit summons to an Advocate Clerk who had offered to make necessary arrangements for contesting the matter. But, later on, it was noticed that no such steps were taken. She was absolutely unaware of the fact that the property was given delivery. There was no cultivation as alleged. That apart, she was suffering from asthmatic problems for a considerably long period and therefore she was unable to contest the matter. Her valuable property had been taken away by a decree passed in the case and therefore she sought for condonation of the delay in filing the application to set aside _ex parte_ decree and to set aside _ex parte_ decree. 6. Though it was initially contended by learned counsel for the revision petitioner that there was no application to condone delay, we find from the records that a composite CRP No.656/14 -:6:- application had been filed for setting aside the _ex parte_ decree and to condone delay of 1315 days. Necessary stamp for two reliefs had also been affixed. Therefore, we do not think that there is any infirmity in the Court below considering the application to condone delay and the application to set aside _ex parte_ decree. 7. Learned counsel for the respondent/defendant submitted that the cost directed to be paid by the District Court was actually paid to the counsel appearing for the appellant. But later it had been clarified that though a junior counsel had received the cost from the counsel for defendant, subsequently it was returned on 5/10/2009 and later the money was deposited before Court. Therefore, as the matters stand now, the cost directed to be paid as per the lower appellate court order is only deposited before Court and it has not been received by the petitioner. 8. The first question to be considered is whether this Court should exercise the revisional power. Revision is filed u/s 115 of Code of Civil Procedure. This Court can exercise jurisdiction to revise an order passed by the Court below if it CRP No.656/14 ## -:7:- appears that the Court has exercised the jurisdiction not vested in it by law or has failed to exercise the jurisdiction so vested or have acted in the exercise of its jurisdiction illegally or with material irregularity and while exercising such power, it shall be open for the High Court to vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding except in instances where the order, would have finally disposed of the suit or other proceedings. Apparently the contention urged by the revision petitioner is that Court below did not consider the merits of the contentions urged in the application to condone delay and also in the application to set aside _ex parte_ decree. Though the trial court had relied upon sufficient material to dismiss the said application, without rendering a finding on the legality or illegality of the said finding, a short cut method had been adopted by allowing the application on costs. Apparently, when a case is decided by the court below without referring to the contentions urged by the parties and without meeting such contentions in the proper perspective, it clearly amounts to an irregularity which could be revised by exercising jurisdiction under S.115 of the Code of Civil Procedure CRP No.656/14 -:8:- and therefore this Court will be justified in interfering with an order passed in a like manner subject to other considerations. 9. There is no dispute about the fact that when an application is filed u/s S.5 of the Limitation Act to condone delay, the civil Court is enjoined with the power to condone delay on sufficient cause being shown. 10. What is sufficient cause is a question of fact, and each case has to be decided on its own facts. 11. In the case on hand, it has to be initially considered whether there is sufficient cause to condone delay in filing the application to set aside _ex parte_ decree. Undoubtedly the delay is gross coming to 1315 days. What exactly was the reason stated to condone delay and whether it is substantiated has to be considered first. Petitioner in her affidavit has stated that she received notice in IA No.366/2001. She entrusted the same to one Advocate Clerk by name Vikraman Nair, whom she knew. The entire records were entrusted to him. She bonafide believed that said Vikraman Nair will inform her about the further proceedings in the case and she was waiting for the same. She later had come to know on 28/7/2006 about the _ex parte_ decree and the CRP No.656/14 -:9:- documents under which delivery had been taken by the plaintiff. She therefore contacted Adv.A.Gopalakrishnan and obtained certified copy of the 'B' diary on 29/7/2006. She received the certified copy on 15/9/2006 and only then she had come to know that an _ex parte_ decree was passed on 27/1/2003. She further stated that she was under treatment for Astma for the last 5 years. She could not travel. She was getting the help of her husband and other relatives for her day-to-day activities. According to her, since she has substantial contentions in the case, _ex parte_ decree has to be set aside and the delay is not due to her wilful negligence and lapses. 12. Respondent in his objection denied the allegations made in the affidavit. It is _inter alia_ contended that the defendant had received notice in the suit when she had engaged a counsel. But no steps were taken to file written statement or objection and accordingly she was declared _ex parte_ . He also denied the fact that she had entrusted the records to the Advocate clerk Sri.Vikraman Nair. He further contended that after the decree, he filed Execution Petition and the copy of the Execution Petition and other records were received by the respondent on 27/8/2003. An CRP No.656/14 -:10:- Advocate appeared on her behalf before the Execution Court and sought time to file objection. The Execution Petition was adjourned to 25/9/2003 and 31/10/2003 when the defendant sought time to file objection. Since the objection was not filed, Court had directed sale deed to be executed in favour of the plaintiff. He also denied that she was having incapacity to travel. He contended that near the plaint-schedule property, the defendant has 25 cents of property and she is taking improvements from the said property. She is also conducting a tea shop at Kaniyapuram. It is stated that the sale deed was executed in his favour by the Court on 2/12/2003. Mutation was effected and he was paying tax. Property was lying as a barren land at the relevant time. He had expended substantial amount for making improvements and by planting rubber saplings which has already reached a level for taking the yield. He further contended that defendant was fully aware of the fact that plaintiff was in possession of the property and she used to see him conducting agricultural operations and it is only when the defendant thought that the property will fetch more value that an attempt is being made to set aside the _ex parte_ decree. Further, CRP No.656/14 ## -:11:- he had also contended that properties within 200 metres from the plaint-schedule property had been acquired for Techno-city and in the event of any such acquisition, on the premise that she will get substantial compensation that the application had been filed. 13. While giving evidence in IA No.1578/2006 as PW1, the defendant produced a document dated 26/7/2001 as Ext.A1 for having treated at a hospital at Pulayanarkotta. Ext.A2 is an OP ticket dated 12/3/2004 issued by the Kazhakuttom Urban Health Training Centre and Ext.A3 is the OP ticket of the Rural Health Training Centre. She had also filed an affidavit in lieu of chief examination in which she had reiterated the averments in the affidavit filed in support of the application to set aside ex parte decree and to condone delay. Ext.A1 is an outpatient ticket dated 26/7/2001 which indicates that she was an astmatic patient since the previous 19 years. Ext.A2 is dated 12/3/2004 but it is also an outpatient card. Ext.A3 does not have any date and it is only having an OP No. At best, these documents would only indicate that she was suffering from Astma. During cross-examination, she stated that once she got notice from the Court and on the second occasion, her daughter received the notice. On receiving IA No. CRP No.656/14 -:12:- 368/2001, she had seen Adv.Gopalakrishnan and had even signed and given a vakalath. The lawyer had given her a paper for signing. She does not know the Advocate Clerk Vikraman Nair which she had mentioned in the affidavit. There is no specific reason for not mentioning the fact that she had given a vakalath to Adv.Gopalakrishnan. She further deposed that her husband was looking after the case and she came to know about the ex parte decree on 28/7/2006. She had come to know about the decree being passed prior to 28/7/2006 from her husband. Before an _ex parte_ decree was passed, she did not appear before Court through Advocate. To the suggestion of the counsel for plaintiff that she made arrangements for appearing in the case through an Advocate on 27/3/2001, she denied the same. She also denied having received notice dated 9/8/2002, but stated that she was aware that there was a case before Court. She denied having received another notice on 1/11/2002. She did not know about the plaintiff having deposited the balance sale consideration. She denied that a lawyer appeared on her behalf on 27/8/2003. According to her, she has Astma for the last 7-8 years. Her husband has another case. She was not involved in any other CRP No.656/14 -:13:- case. She further stated that she had not taken any treatment as in-patient in any hospital. She admits that she is running a tea shop. But, according to her, she had engaged some workmen. She further deposed that she does not go to the property and she does not know whether the property has been registered and mutated in the name of plaintiff. She also knows that the plaintiff was taking yield from the rubber plants. The property will fetch a very good price now. In re-examination she deposed that Vikraman Nair is an Advocate clerk near her house. He had taken her signatures from her shop. He had not informed anything to her. It is after getting the B' diary copy from the court that she had come to know of all facts. 14. The records in the case were also called for. The proceedings in the suit would show that case was posted for return of summons on 2/4/2001, on which date, the defendant sought for time to file written statement. Case was adjourned to 21/7/2001. Again time was sought for to file written statement and adjourned to 17/10/2001. The case was not called on the said date and it was again called on 9/1/2002 and adjourned to 8/2/2002. There was a strike by the staff on 8/2/2002. Case was CRP No.656/14 -:14:- therefore taken on 19/3/2002 and for appearance of parties adjourned to 9/8/2002. On 9/8/2002, plaintiff alone appeared. Notice was again sent to the defendant and the case was adjourned to 7/10/2002. On 7/10/2002, it was notified for appearance on 1/11/2002. On 1/11/2002, written statement and vakalath were not seen filed. Therefore, fresh notice was issued to the defendant and adjourned to 10/12/2002. On 10/12/2002, defendant was called, absent, set _ex parte_ and the plaintiff was called upon to remit the balance Court fee. On 17/12/2002, balance Court fee was remitted. Affidavit was filed on 20/12/2002. Case was heard on 16/1/2003 and decreed on 27/1/2003. Therefore, it is seen that the notice was initially served and the lawyer seems to have appeared and thereafter, there was no appearance. Again notice was issued on 9/8/2002. On 1/11/2002, again notice was ordered. The defendant admits to have received the notice. Case records would also indicate that notice and suit summons were served to the defendant on 16/3/2001. It seems that notice dated 7/11/2002 was served to the daughter of the defendant on 20/11/2002 by which the case was listed for appearance on 10/12/2002. From the records it is CRP No.656/14 -:15:- further seen that IA No.1127/2003 was filed by the plaintiff for advancing the hearing of IA Nos.1068/2003 and 1069/2003, which was filed for enlarging the time for depositing the balance sale consideration and for execution of the sale deed. Though the applications were filed on 7/7/2003, notice was ordered and posted on 27/1/2004. Notice in IA No.1127/2003 is seen served to the defendants on 7/8/2003 as evident from the endorsement made by the process server and another IA No.1068/2003 was served on the defendant on 23/8/2003. 15. The trial Court while considering the issue found that the documents produced by the defendant were not satisfactory enough to prove that she was suffering from a disease by which she was prevented from appearing before court. She admitted having received the notice and summons from the court and according to her, she had engaged a lawyer. Thereafter, there is no explanation why she did not proceed with the case. It is also observed that the sale deed was executed through the process of Court in which also she had received notice and had entered appearance. She is a person conducting a tea shop, of course, according to her, by engaging a few persons and her incapacity CRP No.656/14 -:16:- to appear before Court and contest the matter has not been proved whereas it was found that there is evidence of wilful nonappearance on the part of the defendant and hence there is no reason to condone the delay. 16. None of these findings had been found to be incorrect by the lower appellate Court whereas the lower appellate Court had only proceeded on the basis that payment of cost would serve the purpose and though the petitioner had given evidence as PW1, no contra evidence was adduced. 17. Learned counsel for the respondent had relied upon a long line of judgments to substantiate the proposition that a liberal construction is called for while considering an application to condone delay and unless there is malafides on the part of the person seeking to condone the delay, ordinarily, the courts should direct the parties to contest the case on merits. 18. Reference is made to the judgment of the Apex Court in _**Collector, Land Acquisition, Anantnag v. Katiji**_ [AIR 1987 SC 1353] wherein the delay was only 4 days in which the Apex Court observed that the Court should adopt a liberal approach while considering the expression “sufficient cause”. CRP No.656/14 -:17:- 19. In _**N.Balakrishnan v. M.Krishnamurthy**_ [(1998) 7 SCC 123], the Apex Court considered the case in which there was a delay of 883 days in approaching the Court to set aside an application which was dismissed for non-appearance. The application was filed to set aside the _ex parte_ decree which came to be dismissed since there was no appearance by the counsel. In that case, there was material to indicate that the former counsel had stopped practice and got employment in a private firm. That apart, the party had filed a case against him before the Consumer Forum alleging negligence and deficiency in service and the Advocate was directed to pay `50,000/- as compensation to the appellant. While considering such a case, it was held hat length of delay is no matter. It was held at para 9 as under:- _**“9.** It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is_ CRP No.656/14 ## -:18:- _the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court.”_ 20. _**M.K.Prasad v. P.Arumugam**_ (AIR 2001 SC 2497). This is a case in which there was a delay of 554 days in filing the application for setting aside _ex parte_ decree. It was held at paragraphs 9 and 10 as under: _**“9** . In the instant case, the appellant tried to explain the delay in filing the application for setting aside the ex parte decree as is evident from his application filed under S.5 of the Limitation Act accompanied by his own affidavit. Even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigate him as an irresponsible litigant. He should have been more vigilant but on his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable. While deciding the application for setting aside the ex parte decree, the Court should have kept in mind the judgment impugned, the extent of the property involved and the_ CRP No.656/14 ## -:19:- _stake of the parties. We are of the opinion that the inconvenience caused to the respondent for the delay on account of the appellant being absent from the Court in this case can be compensated by awarding appropriate and exemplary costs. In the interests of justice and under the peculiar circumstances of the case we set aside the order impugned and condone the delay in filing the application for setting aside ex parte decree. To avoid further delay, we have examined the merits of the main application and feel that sufficient grounds exist for setting aside the ex parte decree as well._ _**10** . Consequently, the appeal is allowed by setting aside the order impugned. The appellant's application for condoning the delay and for setting aside the ex parte decree shall stand allowed subject to payment of exemplary costs of Rs. 50,000/- to be paid to the opposite side within a period of 30 days. If the costs are not paid within the time specified, this appeal shall be deemed to have been dismissed and the ex parte decree passed against the appellant revived. We may clarify that the costs awarded by this order are in addition to the amount of Rs.10,000/- deposited in this Court for payment to the respondent vide order dated 3-11-2000.”_ ## 21. A Division Bench of this Court in _**Thomas P. Abraham**_ _**v. Aleyamma Abraham**_ (2003 (3) KLT 864) considered the expression “sufficient cause” coming under O.IX Rule 13. It was held that the words in Order IX Rule 13 that the defendant was CRP No.656/14 -:20:- prevented by any sufficient cause from appearing must be liberally construed to enable the Court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. 22. In _**Surinder Kumar v. Harbhajan Singh**_ [(2005) 10 SCC 635], Apex Court was considering a case in which a suit was decreed _ex parte_ on 22/4/1995 and an application under Order IX Rule 13 was filed on 26/8/1985 on the ground that summons was not served. It was held that when the appellate court after detailed evidence had accepted the non-service of summons, the High Court should not have interfered in the matter. 23. In _**Improvement Trust v. Ujagar Singh**_ [(2010) 6 SCC 786] while considering the scope and effect of S.5 of the Limitation Act, 1963, in a case where the delay was 2 months and a few days, it was held at para 16 as under:- _**“16.** While considering the application for condonation of delay no straitjacket formula is prescribed to come to the conclusion if sufficient and good grounds have been made out or not. Each case has to be weighed from its facts and the circumstances in which the party acts and behaves. From the conduct, behaviour and attitude of the appellant it cannot be said that it had been_ CRP No.656/14 ## -:21:- _absolutely callous and negligent in prosecuting the matter”._ ## 24. In _**Ganesharaju S (D) Thr. L.R.s v. Narasamma (D)**_ _**Thr. L.Rs.**_ [2012 KHC 4227], the Apex Court was considering a case in which there was a delay of 53 days in filing an application to condone the delay in filing a review petition. it was held at para 15 to 19 as under:- _“15. The expression 'sufficient cause' as appearing in S.5 of the Indian Limitation Act, 1963, has to be given a liberal construction so as to advance substantial justice._ _16. Unless Respondents are able to show mala fide in not approaching the Court within the period of limitation, generally as a normal rule, delay should be condoned. The trend of the Courts while dealing with the matter with regard to condonation of delay has tilted more towards condoning delay and directing the parties to contest the matter on merits, meaning thereby that such technicalities have been given a go - by._ _17. Rules of limitation are not meant to destroy or foreclose the right of parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly._ _18. We are aware of the fact that refusal to condone delay would result in foreclosing the suitor from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate._ CRP No.656/14 ## -:22:- _19. In fact, it is always just, fair and appropriate that matters should be heard on merits rather than shutting the doors of justice at the threshold. Since sufficient cause has not been defined, thus, the Courts are left to exercise a discretion to come to the conclusion whether circumstances exist establishing sufficient cause. The only guiding principle to be seen is whether a party has acted with reasonable diligence and had not been negligent and callous in the prosecution of the matter. In the instant case, we find that Appellants have shown sufficient cause seeking condonation of delay and same has been explained satisfactorily.”_ 25. There cannot be any dispute on the law laid down by the Apex Court and this Court in the matter relating to condonation of delay and to set aside _ex parte_ order. But it is needless to state that each case will have to be considered on its own facts. 26. The case on hand is a suit for specific performance of a contract for sale of immovable property. Plaint schedule property is 25 cents. According to the plaintiff, an agreement was executed on 30/8/2000 for a total consideration of `1,50,000/-, of which `1,00,000 was paid as advance. Since the defendant did not receive the balance sale consideration and failed to execute the sale deed, after issuing notice, the suit was filed. Even CRP No.656/14 -:23:- according to the defendant, she received the notice and entrusted the matter to an Advocate clerk Vikraman Nair. However, during cross-examination, she denied having known Vikraman Nair, whereas, according to her, she had gone and seen Adv.Gopalakrishnan and had given necessary vakalath. According to her, she had known about the _ex parte_ decree from her husband. She also denied the fact that she was not aware of the fact that the plaintiff had deposited the balance sale consideration. But it is relevant to note that notice in the case had been served twice, once to the defendant and on a second occasion to her daughter. That apart, when the plaintiff filed the application to enlarge the time for depositing the balance sale consideration, and for execution of the document, the same had been served to the defendant and an application to advance the hearing of the case was also served. Therefore, this is an instance where on three occasions, notice was served on the defendant. Once before the decree and twice after the decree. It is therefore apparent that, this is a case in which defendant did not show any diligence in engaging a counsel or in contesting the matter. CRP No.656/14 -:24:- 27. She woke up from her slumber after four years from the date on which the decree was passed. Apparently, her intention was not to contest the matter initially, or else, no one will permit a decree to be passed after receiving notice and after consulting counsel. 28. The contention of the counsel for the respondent is that there is no malafides on the part of the defendant. But, it is relevant to note that according to counsel for plaintiff, the plaintiff had taken delivery of the property through Court process. He started cultivating the property and rubber saplings were planted in it which is being maintained by him over a period of time. Therefore, the defendant was well aware of the decree as well as the proceedings by which he had taken possession of the property. Still, she did not do anything in the matter. In the counter affidavit, plaintiff has a case that the plaintiff had come to know that this property might by acquired for Techno-city and anticipating a substantial price for the property, the application is filed. It is true that plaintiff did not adduce any evidence. But in a case where the defendant's explanation was that she was having Astma and therefore she was unable to appear before court CRP No.656/14 -:25:- cannot be believed and in a case where she alleges to have entrusted the matter to an advocate clerk, and thereafter she did not do anything in the matter or make any enquiry in the matter, cannot be believed. That apart, she admits that she had gone to a lawyer's office and signed a vakalath on receiving notice in IA No.368/2001. Therefore, this is an instance where there is gross negligence and laches on the part of the defendant in suffering an _ex parte_ decree and even keeping quiet after the property was taken delivery through process of court. The property is now being cultivated by the plaintiff. Defendant also admits in her evidence that she knew that the plaintiff was cultivating rubber and taking improvements from the property. Therefore, I am of the view that there is absolutely no bonafides on the part of the defendant in seeking to set aside the _ex parte_ decree. 29. Learned counsel for the respondent however would submit that the decree for specific performance eventhough is _ex parte_ ought to have been rendered only after taking into consideration the merits of the contentions urged and if it is found that it was a fit case in which specific performance ought to be granted. But, I am not concerned with a case in which merits CRP No.656/14 -:26:- of the contentions are being considered. Of course, while deciding a case _ex parte_ , the trial Court is bound to ensure that sufficient materials are available for granting a decree and in a case where relief sought for is for specific performance, it has to be ensured whether the discretion requires to be exercised or not. But, in this case, the first question to be answered is whether there is any bonafides in the explanation offered by the defendant to condone the delay. As already mentioned, the defendant's contention was that she had entrusted the notice in the case to an Advocate Clerk and while giving evidence, she says that she had entrusted the matter to a lawyer. In the reexamination however, she again reiterates having signed and given the vakalath through Vikraman Nair. Neither Vikraman Nair nor the counsel has not filed any affidavit before Court. Further, she did not make any mention of having received a notice in IA No. 1127/2003 on 7/8/2003 and IA No. 1068/2003 on 23/8/2003. While being examined before Court as PW1, she denied these facts. Though a liberal approach has to be taken in condoning delay, when the delay is gross and the explanation offered is found to be false and not believable, Courts are not bound to CRP No.656/14 -:27:- condone delay even on payment of cost. 30. This is a case in which the plaintiff had taken delivery of the decree-schedule property through Court process. Notice was served to the defendant on all occasions. She had even consulted a lawyer. She has her husband to help her. There is no valid explanation for not prosecuting the case. As the explanation offered for condoning the delay is not proved, the lower appellate court committed error in condoning the delay on payment of cost. 31. In the light of the aforesaid discussion, I am of the view that lower appellate court was not justified in condoning the delay and setting aside the _ex parte_ decree. The Civil Revision Petition is therefore allowed setting aside the order in CMA No.21/2008 and confirming the order passed by the trial Court. No costs. ## **Sd/-** ## **A.M.SHAFFIQUE** Rp //True copy// PS to Judge **JUDGE**