CRP/3308/2026 of Samuthrapandian Vs Johson David on 2 September 2026

ORDER

The defendant in a suit is the revision petitioner, aggrieved by the dismissal of I.A.No.2 of 2025 in O.S.No.85 of 2014, on the file of the learned Additional District Judge (Fast Track Court), Villupuram.

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2. I have heard Mr.S.Janarthanan, learned counsel for the revision petitioner and Mr.D.Vasanth, learned counsel for the respondent.

3. Mr.S.Janarthanan, learned counsel for the revision petitioner would contend that the respondent had filed a suit in O.S.No.85 of 2014, for recovery of huge sum of Rs.38,66,145/-, together with interest and costs. The petitioner, as defendant, resisted the suit, contending that he is not liable to pay the amounts claimed and in short, the liability was denied by the revision petitioner. However, the petitioner was set ex-parte and the suit was decreed on 13.04.2022, for a sum of Rs.27,16,145/-, payable with interest at 9% per annum from the date of filing of the suit, till the date of decree and thereafter, at the rate of 6% per annum.

4. The learned counsel for the revision petitioner would further contend that an application under Section 5 of the Limitation Act was filed, seeking to condone the delay of 992 days in filing the application to set aside the ex-parte decree. He would further contend that despite the petitioner making out sufficient cause, explaining the entire period of delay, the Trial Court has erroneously dismissed the application, thereby foreclosing valuable defense available to the revision petitioner to defend the suit claim. The learned counsel for the petitioner has relied on the decision of the Hon’ble Supreme Court in N.Balakrishnan Vs. M.Krishnamurthy, reported in (1998) 7 SCC 123. The

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learned counsel for the petitioner would further state that the Trial Court should exercise its discretion liberally, especially while dealing with Section 5 applications under the Limitation Act. He would therefore pray for the revision petition being allowed.

5. Per contra, Mr.D.Vasanth, learned counsel for the respondent would contend that the delay of 992 days was not only inordinate, but also not sufficiently explained and the Trial Court had rightly found that the petitioner had not made out sufficient cause. He has relied on the decision of this Court in A.Vijaya Vs. P.Nagalingam and another in CRP.No.4962 of 2023 dated 26.09.2025, where I had confirmed the dismissal of Section 5 application seeking to condone the delay of 741 days.

6. I have carefully considered the submissions advanced by the learned counsel on either side.

7. On perusal of the affidavit filed in support of the condone delay application, I am able to see that on receipt of summons in the suit, the petitioner has duly engaged a counsel and also filed a written statement. The suit was posted for cross examination on 21.03.2022 and since P.W.1 was not cross examined, after giving a fair opportunity to the petitioner, the suit was decreed ex-parte on 13.04.2022. The petitioner further contends that he was dependent on his counsel and that he was affected by Jaundice and was bedridden and he was taking native treatment for recovery.

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8. The said application was resisted by the respondent, contending that false allegations are being made against the counsel, a Senior Member of the Bar and that even on 25.03.2022, when the suit was posted for cross examination of P.W.1, the petitioner personally appeared in Court through a different counsel and did not choose to cross examine P.W.1 and despite the same, the Trial Court was indulgent and posted the matter to 28.03.2022, on which date alone, the petitioner was set ex-parte. It is also contended by the respondent that the suit was thereafter posted to 30.03.2022 on which date also, there was no appearance on the side of the revision petitioner and finally, the suit came to be decree ex-parte only on 13.04.2022. The claims regarding ill health of the petitioner have been stoutly denied. In fact, it is further contended in the counter affidavit that the petitioner filed applications to reopen and recall P.W.1 which had been returned by the Court and they were not even represented by the petitioner. In short, the respondent vehemently opposed the condone delay application. The respondent has further stated that in order to execute the decree, E.P.No.273 of 2024 was also filed on 01.08.2024 and only thereafter, in order to deny and defeat the fruits of the decree and to protract the proceedings further, the application has been filed.

9. The Trial Court, on considering the facts and circumstances, finding that though the petitioner examined himself as P.W.1, in his evidence, he has stated that he was running a Marriage Hall continuously. The Trial Court also found that no documents

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were filed to establish the reasons set out seeking condonation of delay. The Trial Court also found that the reasons were vague with no specific dates as well. The Trial Court also found that having entered appearance in the execution proceedings even in October 2024, the attempt to set aside the ex-parte decree was made only on 29.01.2025 and there is no explanation for the delay between 15.10.2024 and 29.01.2025. Ultimately, the Trial Court dismissed the Section 5 application, holding that no sufficient reasons have been assigned by the petitioner.

10. Though the learned counsel for the petitioner has placed reliance on the judgment of the Hon’ble Supreme Court in N.Balakrishnan’s case, that was a case where the Trial Court had exercised discretion and condoned the delay, but however the High Court reversed the order, holding that the delay has not been properly explained. The Hon’ble Supreme Court found that the appellant’s conduct, on facts, did not warrant castigating him as an irresponsible litigant and also noticing that the delay being a matter of discretion of the Court and when the discretion had been exercised by condoning the delay, then the superior Court cannot interfere with such exercise of discretion, unless the Trial Court had exercised the discretion arbitrarily or perversely.

11. In fact, the Hon’ble Supreme Court further held that if the Trial Court had refused to condone the delay, then it would be open to the superior Court to consider the cause shown to the delay afresh and come to its own finding, untrammelled by the

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conclusion of the Lower Court. Hence, I do not see how this decision can be taken advantage of by the petitioner.

12. In A.Vijaya’s case, relying on the decision of the Hon’ble Supreme Court in Delhi Development Authority Vs. Tejpal and others, reported in (2024) 7 SCC 433, I held that while dealing with Section 5 application, two ingredients will have to be analysed, viz., (i) an examination of whether sufficient cause has been made out and (ii) whether such cause has been shown for not filing an application within the prescribed period. I further held that when the petitioner did not take out the application to set aside the ex-parte order within 30 days from the date of being served with notice in the execution proceedings, then sufficient cause is certainly not made out. I have also held that while considering an application for condonation of delay, the Court cannot be swayed by merits of the claim, but restrict the enquiry, only to the reasons assigned for condonation of delay and only if sufficient cause is made out, then alone the Court can proceed to consider the respective rights of the parties and attempt to balance equities, if permissible. Even applying the ratio laid down by me in A.Vijaya’s case, I am unable to see how the impugned order requires interference. In the light of the above, there is no merit in the revision petition, especially when the Trial Court has passed a well considered order and also dismissed all the reasons assigned by the petitioner and finding them to be insufficient to exercise discretion in favour of the petitioner.

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13. In fine, the Civil Revision Petition is dismissed. No costs. Connected Civil Miscellaneous Petition is closed. 02.09.2026 Neutral Citation Case : Yes / No Speaking / Non-speaking order Index : Yes/No ata To The Additional District Judge (Fast Track Court), Villupuram.

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P.B.BALAJI.

J, ata Pre-delivery order made in CRP.No.3308 of 2026 02.09.2026

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