TaxTMI 
TaxTMI 
2001 (8) TMI 1432
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....overy of possession of portions of the suit property from defendants 2 to 25, and for mesne profits from the date of the suit till possession to be determined under Order 20, Rule 1 C.P.C. 4. The plaintiffs filed the suit as indigent persons and after they were permitted to sue as indigent persons, the suit was dismissed for default once on 6.11.1989. However, it was restored on 13.10.1992 and thereafter the revision petitioners and others remained ex parte and an ex parte decree was passed against them on 1.9.1994. Alleging that they had not received any communication about the restoration of the suit and the ex parte decree passed against them from their Advocate, they took out application in I.A. No. 37 of 1997 on 6.12.1996 to condone the delay of 797 days in filing the application under Order 9, Rule 13, CPC. The only reason given in the affidavit in support of the application was, as already noted, they had not received any communication about the restoration of the suit and the ex parte decree passed against them from their Advocate. According to them, they had a good and valid defence in the above suit. Application was opposed by respondents 1 to 3 by filing a counter sta....
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....ention to the specific admission made by the first revision petitioner as P.W.1 about his being informed by his lawyer about the ex parte decree and they had deliberately kept quiet, and only with a view to harass the plaintiffs, the petition had been filed. The learned counsel further submitted that none of the decisions relied on by the learned counsel for the revision petitioners would apply to the facts of the present case." 8. P.W.1 has stated in his Chief Examination as follows.: In cross examination this is what he had stated: This is hardly an acceptable explanation. He knew about the ex part a decree even in 1994. The ex parte decree came to be passed on 1.9.1994. Till December 1996, the petitioners were keeping quiet though they knew about the ex parte decree. In fact in cross examination, P.W.1 has stated as follows: I am not at all satisfied that the petitioners are bona fides in seeking a decision in the suit on merits. It has already been noticed that the plaintiffs filed the suit as indigent persons. Apparently, the trust, thanks to the recalcitrant attitude of its tenants like the petitioners, was not in a position to ....
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....nored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan, ILR 3 MAD 269. "Section 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide as imputable to the appellant" (Italics supplied) Unless gross negligence or deliberate inaction or lack of bona fide is imputable to the party seeking condonation of delay, Section 5 of the Limitation Act must receive a liberal construction so as to advance substantial justice and generally delays be condoned in the interest of justice. In the absence of anything showing mala fide or deliberate delay as a di....
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..... He was unaware of the passing of the decree against him; he could not take any proceeding in the form of an appeal or for setting it aside. He came to know about the passing of the decree after one year, only when he received the notice for execution proceedings initiated by the respondent and thereafter he filed an application for setting aside the ex parte decree along with an application for condoning the delay. The trial Court rejected the prayer of the appellant for condoning the delay of 554 days in filing the application for setting aside ex parte decree. Aggrieved by the order of the trial Court, the appellant filed a revision" petition in the High Court which was dismissed. The Supreme Court referred to a number of its earlier decisions, held that the conduct of the appellant did not warrant his being ousted from litigation. 15. In the instant case it has already been noticed that the revision petitioners knew about the ex parte decree even in 1994 and till December 1996 they did not take any steps to have the ex parte decree set aside. Absolutely, no explanation had been given in the affidavit in support of the application for condonation of delay. Though in the cour....