CRP/3829/2026 of A. Babiyan Amalraj Vs Jayakumar on 25 September 2026

ORDER

The plaintiff, in O.S. No.68 of 2015 on the file of the V Additional District Court, Coimbatore is the revision petitioner, aggrieved by the order of the Trial Court condoning the delay of 429 days in filing the Application to set aside the exparte decree.

2. I have heard Mr.Nandha Kumar, learned counsel for Mr.Vignesh Kumar, learned counsel for the revision petitioner and Mr.K.V.Muthu Visakan, learned counsel for the respondent/defendants 2 and 3.

3. The brief facts that are necessary for adjudicating the issue that arises for consideration in this revision are as follows:- The revision petitioner as plaintiff filed O.S. No.68 of 2015, for specific performance of an agreement of sale and for a declaration challenging a sale deed dated 11.04.2011, as null and void and not binding on the plaintiff and for a permanent injunction to restrain the first defendant or anybody claiming through or under him or alienating the suit property till the disposal of the suit. The said suit was decreed exparte on 03.11.2018. The petitioner filed E.P. No.145 of 2019 before the V Additional District Court, Coimbatore and after entering appearance in the Execution Petition, I.A. No.1 of 2020 was filed on 05.02.2020, seeking condonation of delay of 429 days in filing the application to set aside the exparte decree.

4. In I.A. No.1 of 2020, the petitioners have mentioned the delay as 418 days, which according the revision petitioner is a wrong calculation of the actual delay. However, be that as it may, in the said application it has been contended by the defendants that the deponent of the affidavit for condonation of delay had suffered leg fractures, for which he had taken Ayurverdic Treatment for a whole year and subsequently, he was affected with Dengue and therefore, could not appear to contest the suit. The said Application despite being hotly contested, was allowed by the Trial Court. As against the said order, that the present revision petition has been filed.

5. Mr.Nandha Kumar, learned counsel for the revision petitioner/plaintiff would contend that the Trial Court, despite coming to the conclusion that the petitioners had not shown sufficient cause, has erroneously proceeded to condone the delay, which exercise is impermissible in the eye of law. He would further contend that the Trial Court ought not to have been swayed by the merits of the suit claim or the substantial rights of the defendants in immovable property, for exercising discretion in their favour, that too, condoning an inordinate delay of 429 days, which admittedly was totally unexplained by the respondent. He would also point out to the conduct of the respondents in even allowing the application for condonation of delay to be dismissed for default and multiple attempts by the respondents to drag the proceedings, in order to defeat the execution of the decree in favour of the revision petitioner.

6. In support of his submission, the learned counsel has relied on the following decisions:- " 1.Shivamma (Dead) by LRs Vs. Karnataka Housing Board and others, reported in (2025) SCC Online SC 1969;

2. K.Ramasamy Vs. R.Nallammal and others, reported in (2025) SCC Online SC 477;

3. Basawaraj and Another Vs. The Special Land Acquisition Officer, reported in, (2013) 8 SCR 227;

4. Tamil Nadu Mercantile Bank Limited Vs. Appellate Authority under Tamil Shops and Establishments Act, Madurai and others, reported in (1989) SCC Online Mad 256;

5. P.Suresh Kumar Vs. M.Dhandapani and others, reported in (2025) SCC Online Mad 13160; and

6. J.Kulasekaran Vs. K.M.Yella Reddy and others, reported in (2026) SCC Online Mad 408.

7. Per contra, Mr.K.V.Muthu Visakan, learned counsel appearing for the respondents/defendants would firstly state that the Trial Court has rightly exercised discretion by allowing to condone delay application finding that the petitioner’s substantial rights in immovable properties are involved and therefore, they should be given a fair opportunity to contest the suit on merits. He would further state that the discretion exercised by the Trial Court is proper and therefore, no interference is warranted in revision. He would also contend on merits, the respondent had purchased the property in and by a registered sale deed and had much better right, title and interest than the plaintiff, a mere agreement holder. He would rely on the decisions of the Hon’ble Supreme Court in Inder Singh Vs. State of Madya Pradesh, reported in, 2025 SCC Online SC 609.

8. I have carefully considered the submissions advanced by the learned counsel on either. I have also gone through the order impugned in the present revision besides the various authorities on which reliance has been placed by the learned counsel for the parties.

9. Though it has been vehemently contended by Mr.Nandha Kumar, learned counsel that even the length of delay has not been properly calculated and mentioned in the affidavit, I do not find this to be of any serious consequences, since the difference is only about 25 to 30 days. Moreover, the length of delay is immaterial and as long as the applicant shows sufficient cause entitling him to discretion under Section 5 of the Limitation Act, it does not matter if the delay is one day or 1000 days. The sine qua non, is therefore, "sufficient cause" to be shown by the petitioner who seeks condonation of delay. In this context, it would be relevant to refer to the reasons assigned by the petitioner in the affidavit in support of the condone delay application. The Application has been taken out by the defendants 2 and 3. The affidavit has been signed by the third defendant. He has stated that he was aware of the posting of the suit on 08.11.2019 for his appearance and the reasons assigned by the third defendant is that he and the second defendant were travelling in a two wheeler to meet their Advocate in connection with the above suit and on the way, they met with an accident and the both the petitioners suffered fractures in the legs for which, they took ayurvedic treatment for one year and that thereafter, both the petitioners suffered from Dengue fever and therefore, they could not file the Application for setting aside the exparte decree in time.

10. No doubt, as already discussed, originally the delay has been calculated as 418 days, but however, it has been corrected as 429 days. The said Application was resisted by the respondent/plaintiff and on enquiry, the Trial Court despite finding that no documentary evidence has been produced on the side of the defendants to substantiate the factum of suffering fractures in the leg and subsequent Dengue fever, allowed the application on the ground that they should be given an opportunity to contest the suit. The Trial Court imposed a costs of Rs.10,000/- for allowing the condone delay application. Thus, it can be seen that the Trial Court has not even rendered a finding that the cause shown by the petitioner is sufficient, warranting exercise of discretion under Section 5 of the Limitation Act in favour of the respondents herein.

11. Section 5 of the Limitation Act, which provides for condonation of delay, can be exercised only when sufficient cause is shown. The Trial Court in fact, despite rendering a finding that no cause has been shown, proceeded to condone the delay only on the ground that an opportunity should be given to the defendants. Whether such exercise of discretion is proper or perverse falls for consideration in the present case. The Hon’ble Supreme Court in a recent decision of Shivamma's case (referred herein supra), held that the delay should not be condoned on frivolous and superficial grounds, until a proper case or sufficient cause is made out. The Hon’ble Supreme Court further held that limitation periods are prescribed to maintain a sweeping scope for the lis to attain finality and it should not become a ground for re-opening the lis for another round of litigation, leaving litigants listless. In the very same decision, the Hon’ble Supreme Court has also specifically addressed the scope of enquiry by an appellate or revisional authority, when discretion has been exercised by the Court of first instance. Examining such scenario, the Hon’ble Supreme Court held that when the Trial Court has refused to condone delay, then the Court sitting in appeal would be entitled to consider if the delay should be condoned or not, afresh, notwithstanding the decision of the Trial Court. However, some weight and importance would have to be given to the reasons which swayed in the mind of the Court from refusing to exercise its discretion.

12. On the contrary, the Hon’ble Supreme Court held that when a Court sitting in appeal over the exercise of discretion granting condonation of delay, then the Court is only required to see if there was proper exercise of the discretion and if the same was for advancing the cause of justice and held that if the explanation offered inspires confidence, then the cause can be accepted as sufficient cause. However, if the Court had ventured into extraneous consideration or accepted sufficient cause contrary to law or despite lack of evidence, then such an order condoning the delay would be a fit one to be interfered with by the Appellate Court. Therefore, though the role of this Court is limited, to satisfy itself as to whether the order passed by the Trial Court is not vitiated because of any material irregularity, want of evidence, extraneous considerations, failure to take into consideration of any relevant facts, or being

contrary to law of land, then Section 5 cannot be exercised in favour of the litigant seeking condonation of delay.

13. The Hon’ble Supreme Court further held that exercise of discretion should not be mechanical or done in a routine manner, without application of mind and should not result in great prejudice to the other side and held that the test is to see if the exercise of discretion was patently wrong or not and ordinarily the Court of appeal should be slow and circumspect to substitute its own opinion on the exercise of discretion, if it is satisfied that the view of the Court below, in accepting the plea of sufficient cause was plausible. However, if the Court below has misdirected itself, and exercised discretion incorrectly, then the Court sitting in appeal is entitled to interfere.

14. The Hon'ble Division Bench of this Court, in Tamil Nadu Mercantile Bank Limited’s case (referred herein supra), held that a litigant who chooses to come to Court after considerable delay for which he has no explanation, he has to blame himself, for his matter being thrown out without the merits being considered and that he cannot complain that the cause of justice has been defeated because of his own delay. The Hon’ble Division Bench further held that when the matter has not been gone into on merits, then there is no question of taking the view that the other side is taking advantage of a vested right in injustice and therefore, a party who has lost his right to have the matter considered on merits because of his own inaction, cannot be heard to plead that substantial justice deserves to be preferred as against technical consideration, since rules of limitation or based on principles of sound public policy and principles of equity.

15. In P.Sureshkumar as well as J.Kulasekaran’s cases (referred herein supra), I held that at the stage of considering an application for condonation of delay, the Court is not required to deal with the merits of the case, but the application will have to be solely decided on its own merits, examining the cause shown, and in Kulasekaran’s case, I held that it is sine quo non, to establish "sufficient cause" for the delay and if the applicant is not able to show sufficient cause, then there is no question of the Court proceeding to condone the delay. These decisions would squarely apply to the facts of the present case, especially, since I have already discussed the manner in which the Trial Court has proceeded to condone the delay, by observing that an opportunity should be given to the defendants to contest the suit on merits, despite, finding that there is lack of evidence to substantiate or establish any sufficient case

16. Coming to the decision relied on by learned counsel Mr.Muthu Visakan, learned counsel for the respondents, in Inder Sing’s case (referred herein supra), that was a case where the Hon’ble Supreme Court condoned the delay only on the ground that the dispute over title of the subject land in that case was not between the private parties, but between the private party and the State and finding that the land in question was taken possession of by the State and allotted for public purposes, viz., the Youth Welfare Department and Collectorate and has remained in possession of the State, felt that the matter required adjudication on merits and in such circumstances alone, the delay was condoned. However, even in the said decision, the Hon’ble Supreme Court clearly held that there can be no quarrel on the settled principle of law that the delay cannot be condoned without sufficient cause and only in exceptional cases where the merits have to be examined, then the rights of a party, should not be scuttled merely on the basis of limitation.

17. In fact in Shivamma’s case, (referred herein supra), the Apex Court discussed the ratio laid down in Inder singh’s case, (referred herein supra), and on facts, held that sufficient cause had been demonstrated by virtue of having pursued a review petition which had caused delay and further delay was caused on account of Covid-19 pandemic.

18. In view of the above, I find that the Trial Court has clearly erred in allowing the condone delay application and the exercise of discretion is improper and perverse and having found that no sufficient cause has been shown, a mere ground that an opportunity should be given to the defendants, cannot be reason to exercise discretion under Section 5 and condoned a huge and inordinate delay of 400 and above delay.

19. For all the above reasons, I am inclined to interfere with the erroneous order of the Trial Court. This Civil Revision Petition is allowed. Consequently, connected Miscellaneous Petition is also closed. No costs.

25-09-2026 Index: Yes Speaking order Neutral Citation: Yes RKP To The Judge, V Additional District Court, Coimbatore.

P.B.BALAJI, J. RKP Pre-delivery Order in CRP. No.3829 of 2026 and CMP. No.16693 of 2026 25-09-2026