(Prayer: Application filed under Order XIV Rule 8 of O.S.Rules r/w Section 5 of the Limitation Act to condone the delay of 648 days in filing the application to set aside the exparte decree dated 30.10.2013 passed in C.S.No.51 of 2012.)
1. This application has been filed by the applicant/defendant seeking to condone the delay of 648 days in filing the application to set aside the exparte decree dated 30.10.2013 passed in C.S.No.51 of 2012.
2. The suit is one for specific performance.
3. It is stated by the applicant, in the affidavit filed in support of this application, that though the written statement has been filed by the counsel engaged by him and the same was returned for compliance, it could not be complied with and represented on time. The reason stated is that the counsel engaged by the applicant had fallen sick and he could not continue his profession. Thereafter, the papers were collected from the erstwhile counsel and a new counsel was engaged.
4. In the additional affidavit filed, it is stated by the applicant, that the counsel Mr.J.L.Vincent, engaged by him was sick and down with Nephropathy. He has also filed a medical certificate with respect to the same. The present counsel engaged by the applicant did not know from where to start and that had also caused further delay in representing the written statement as well as filing of the application for setting aside the exparte decree.
5. The learned counsel for the respondent/plaintiff, vehemently contested the application. It is stated in the counter affidavit that the suit summons were served and that the defendant had also entered appearance. The defendant has filed the written statement, though returned, he ought to have been vigilant enough in prosecuting his case. Further the delay is inordinate and it is only due to the careless attitude of the defendant and therefore, the same cannot be condoned.
6. It is also further stated that the applicant/defendant had entered appearance in the Execution Petition filed by the respondent/plaintiff subsequent to the decree. Therefore, the reasons given for the delay is unacceptable.
7. At this juncture, it is relevant to note that the Hon''ble Supreme Court has reiterated that a liberal pragmatic and justice oriented approach should be given in dealing with the application for condonation of delay. It is the substantial justice which is paramount and pivotal and the technical considerations should not be given unnecessary emphasis. Of course, lack of bona fides imputable to a party seeking condonation of delay is relevant and significant fact.
8. This Court, however, considering the reason that the counsel had fallen sick and that the litigant should not be prejudiced by the reasons beyond his control, is inclined to condone the delay. Since the plaintiff has also filed execution petition and only at that stage, the above application is filed, for the prejudice that has been caused to the respondent/plaintiff, the delay is condoned however on condition.
9. Accordingly, this application is allowed, subject to the condition, that the applicant/defendant shall pay a sum of Rs.3,000/- (Rupees three thousand only) to the respondent/plaintiff within a period of two weeks from the date of receipt of a copy of this order. Failing compliance of the same, within the time stipulated, this order will not enure to the benefit of the applicant/defendant.