CRP/5070/2025 of S. Adeshwaraj Vs S. Kuppusamy (Dead) 1. K.Selvaraj on 25 September 2026

ORDER

The appellant in A.S.SR.No.1686 of 2021 is the revision petitioner, aggrieved by the dismissal of an application filed under Section 5 of the Limitation Act in I.A.No.1 of 2021, seeking condonation of a delay of 4347 days in preferring the first appeal.

2. I have heard Mr.T.Murugamanickam, learned Senior Counsel for Mr.K.Govi Ganesan, learned counsel for the revision petitioner, Mr.N.Nithianandam, learned counsel for the first respondent, Mr.A.Muthukumar, learned counsel for the second respondent and Mr.T.Thiyagarajan, learned counsel for the third respondent.

3. Mr.T.Murugamanickam, learned Senior Counsel for the revision petitioner would firstly contend that the judgment passed ex-parte is a non-speaking judgment, without considering the merits and demerits of the plaint averments and allegations. Though he would fairly admit to the present legal position that the judgment not being in conformity with Order XX of Code of Civil Procedure cannot be raised or canvassed in an application for condemnation delay, he would however state that it would still be a relevant factor since fraud has been played on the Court by the respondents. In this regard, he states that the plaintiff claimed under a settlement deed of the year 1986 and suit reliefs also only flowed from the said settlement deed. However, a mischievous attempt has been made by the plaintiff in incorporating survey numbers, which were not settled on the plaintiff under the said settlement deed and the explanation offered in this regard in the plaint was also totally fanciful and unsubstantiated.

4. The learned Senior Counsel would further state that the father and brother of the plaintiff have subsequently sold the remaining properties to the third defendant, who is the revision petitioner herein and based on the mischievous inclusion of survey numbers not forming part of the settlement deed in the schedule/suit property, the plaintiff has snatched an ex-parte decree behind the back of the revision petitioner. He would therefore state that when fraud has been played upon the Court, then the same can be raised at any stage of the proceedings and the learned Senior Counsel would therefore state that the petitioner may be put on any terms as a condition precedent for condoning the delay and permitting the petitioner to prosecute the appeal on merits. In support of his submissions, he also placed reliance on the judgment of the Hon’ble Supreme Court in Meghmala and others Vs. G.Narasimha Reddy and others, reported in (2010) 8 SCC

383.

5. Per contra, Mr.A.Muthukumar, learned counsel for the contesting second respondent- plaintiff would state that the revision petitioner cannot canvass the merits of the appeal suit, but has to satisfy this Court with regard to the explanation offered for the delay. In this regard, he states that the delay in preferring the first appeal is not only inordinate, namely 4347 days, but has also not been sufficiently or satisfactorily explained, for exercise of discretion in favour of the revision petitioner. Mr.A.Muthukumar, would further state that the First Appellate Court has rightly dismissed the condone application and in fact, evidence was also adduced by the revision petitioner and finding that nothing turned on the evidence adduced in the witness box, the Appellate Court refused to exercise discretion by condoning the delay. He would therefore pray for dismissal of the revision petition.

6. I have carefully considered the submissions advanced by the learned Senior Counsel and the learned counsel for the contesting second respondent.

7. The Hon'ble Supreme Court, as well as this Court have time and again held that while examining a Section 5 application under the Limitation Act, the party seeking condemnation of delay has to make out sufficient cause before entitling such party to exercise of discretion by condonation of delay as prayed for.

8. It is sine qua non for an application for condonation of delay being allowed. Applying equity and going into the merits and demerits of the main case between the parties is permissible only if the applicant shows sufficient cause and not otherwise.

Therefore, even though elaborate arguments were advanced by Mr.T.Murugamanickam, learned Senior Counsel on the merits of the claim and alleged fraud played by the second respondent-plaintiff, I have to first examine whether the revision petitioner has made out sufficient cause, entitling for an order of condonation of delay.

9. In the affidavit filed in support of I.A.No.1 of 2021 in A.S.SR.No.1686 of 2021, the revision petitioner states that though he was arrayed as the third defendant in the suit, he remained ex-parte and the decree came to be passed on 13.04.2009. The said decree has been challenged in first appeal, however with a huge delay of 4347 days delay. According to the petitioner, his father was running a jewellery shop in Madurantakam town, adjoining their residence and a Court process server came to the said jewellery shop to serve summons in the suit and at that point of time, an Advocate by name Mr.Thilagaraj, who was known to the petitioner's family, was present and on the advice of the Advocate that he would take care of the matter, the petitioner received summons and entrusted vakalak to the said Advocate. The petitioner also contended that the said Advocate had informed the petitioner that his presence would not be required for all hearings and that the Advocate would contact him whenever needed. The petitioner therefore stated that he was under the bona fide impression that the case was being taken care of by the Advocate. However, to his shock, in November 2020, a land broker approached the petitioner's father and handed over copies of certain land documents, representing that the said lands were coming up for sale and on going through the documents, the petitioner found that the suit filed against the petitioner, where the petitioner was arrayed as third defendant was proceeded ex-parte and decreed on 13.04.2009 itself. The petitioner immediately approached the Advocate, who was engaged and enquired about the ex-parte decree. However, according to the petitioner, the said Advocate did not give any satisfactory explanation and on the contrary, responded irresponsibly, alleging that it was the petitioner who had not co-operated in conducting the case properly. The petitioner has further stated that he had to engage a new counsel and collect all case papers and the same were received only on 28.12.2020 and immediately thereupon, an appeal has been filed.

10. The petitioner also states that on examination of papers, he came to know that an Advocate by name K.Idhayaraj had filed I.A.No.1982 of 2010 under Section 5 of the Limitation Act, seeking condonation of a delay of 474 days in filing the petition to set aside the ex-parte decree dated 13.04.2009. According to the petitioner, he has not signed the said affidavit or the written statement that was enclosed along the said application. It is the further allegation of the petitioner that the said Advocate is none else than the brother of the original Advocate, who had entered appearance for the petitioner in the suit. The said Section 5 application in I.A.No.1982 of 2010 also came to be dismissed on 27.09.2011. Claiming that the petitioner was in dark about all these proceedings, after engaging a new counsel, the petitioner referred an appeal, challenging the ex-parte decree. However, since the period of delay had swelled by then to even 4000 days, an application under Section 5 had become necessary.

11. The second respondent in the said application, who is none else than the own brother of the petitioner expressed no objection for the delay to be condoned. By such time, the father of the petitioner had also passed away. However, the second respondent- plaintiff filed a detailed counter, setting out the attempt made by the petitioner to seek condonation of delay and same being unsuccessful and that the said order has become final, even as early as on 27.09.2011 and further contending that the petitioner is residing very close to the Court premises and having admittedly engaged a counsel, after receipt of summons, the petitioner cannot feign ignorance and contend that he was believing or trusting his counsel and therefore did not follow up the matter.

12. Before the First Appellate Court, the petitioner examined himself as P.W.1 and the Advocate engaged by him as P.W.2 and the Advocate's brother, who had filed an application, without instructions (as alleged by the petitioner) as P.W.3. The First Appellate Court, after considering the case of the petitioner, the objections of the contesting respondent and the evidence adduced by the three witnesses, came to the conclusion that the evidence of the petitioner's witnesses, namely the advocates clearly established that there was no negligence on the part of the Advocates and it was only the petitioner who did not duly follow up the matter. In fact, though serious allegation is made against P.W.3, the Advocate who had filed an application for condonation of delay to set aside the ex-parte decree even in I.A.No.1982 of 2010, nothing incriminating has been brought to fore in cross examination of both P.W.2 as well as P.W.3, who is claimed to be the brother of P.W.2. On the contrary, in cross examination of P.W.1, he himself admits that he received summons in the suit and engaged P.W.2, as his counsel.

13. He also admits to the factum of filing of the application in I.A.No.1982 of 2010. In such circumstances, the Court rightly found that the petitioner has filed a false affidavit and no satisfactory or sufficient reasons have been made out for condonation of the huge and inordinate delay of 4347 days, as prayed for by the petitioner.

14. In Shivamma (Dead) by LRs Vs. Karnataka Housing Board and others, in Civil Appeal.No.11794 of 2025 dated 12.09.2025, the Hon'ble Supreme Court, after considering the entire gamut of case law on Section 5 Limitation Act held that once a party has lost its right to have the matter considered on merits, because of its own inaction, then it cannot be presumed to be non-deliberate delay and in such circumstances, such party cannot be heard to plead that substantial justice deserves to be preferred as against technical considerations. The Hon’ble Supreme Court reiterated that

the consideration of a plea of condonation of delay must not start with the merits of the main matter and the Court has to first ascertain the bonafides of the explanation offered by the party seeking condonation of delay and it is only when sufficient cause is assigned by the litigant and the opposition of the other side is equally balanced that the Court can even bring into aid, the merits of the matter for the purpose of condoning the delay.

15. In Meghmala’s case, the Hon’ble Supreme Court held that when there is an abuse of process or fraud on Court, then it would vitiate all solemn acts and the Court can taken away all advantages gained, if fraud is proved and the Court can recall its own order, if proved to be obtained by fraud. However, that was a case where there was material suppression of vital facts from the Court. However, in the same judgment, the Hon’ble Supreme Court relied on the decision in Kinch Vs. Walcott, reported in 1929 AC 482, and held that mere constructive fraud is not, at all event after long delay, sufficient but such a judgment will not be set aside upon mere proof that the judgment was obtained by perjury.

16. In the light of the above, I have no hesitation in holding that the First Appellate Court has rightly refused to exercise discretion in favour of the petitioner by condonation of the inordinate and unexplained delay of 4347 days. As already stated, though elaborate arguments were advanced, alleging fraud, per se, I am unable to see any fraud having been played for more than one reason. Firstly, the suit was filed way back in the year 2008 and a settlement deed itself in favour of the plaintiff was much earlier having been executed on 09.12.1986. In view of long passage of time, there is bound to be subdivisions and change in survey numbers. Though Mr.T.Murugamanickam, learned Senior Counsel forcefully contended that the subdivisions that have been included in the plaint, can by no stretch of imagination, fall outside of the parent survey number, the second reason for me to hold that there can be no fraud alleged is that the petitioner himself got mutation of revenue records in his favour, leaving out the suit survey numbers. Therefore, even at the relevant point of time when the petitioner got mutation in his favour, pursuant to the purchase from the defendants 1 and 2, the father and brother of the plaintiff, the petitioner had knowledge of the ex-parte decree in favour of the respondent/plaintiff. There is absolutely no whisper or an explanation as to why the revision petitioner did not immediately rush to Court, alleging that mutation in respect of the suit properties was refused in his favour and sought for setting aside the ex-parte decree. Therefore, considering these two aspects, I am unable to see how the petitioner can fall back on alleged fraud having been played by the respondent/plaintiff, in order to gain sympathy of this Court for enabling an indulgence to be shown to the petitioner to prosecute the appeal on merits. For all the above reasons, I do not find any grounds to interfere with the well-considered order of the First Appellate Court.

17. In fine, the Civil Revision Petition is dismissed. No costs. Connected Civil Miscellaneous Petition is closed. 25.09.2026 Neutral Citation Case : Yes / No Speaking / Non-speaking order Index : Yes/No ata To The Sub Court, Madurantagam.

P.B.BALAJI.

J, ata Pre-delivery order made in CRP.No.5070 of 2025 25.09.2026