SUPREME COURT OF INDIA

Before:- B.N. Kirpal and S. Rajendra Babu, JJ.

Civil Appeal No. 166 of 2000 (arising out of SLP(C) No. 2238 of 1999). D/d. 10.1.2000.

K. Ayya Thayalnayagiammal - Appellant

Versus

T.V. Thomas - Respondent

Limitation Act, 1963, Section 5 - Condonation of delay - Setting aside of ex parte order - Reasons for not appearing on date fixed for hearing - Different reasons given before Trial Court and in the affidavit filed before the Supreme Court - Order of High Court condoning the delay, set aside.

[Para 3]

JUDGMENT

Special leave granted.

2. The appellant had on 24th June, 1993 filed a suit for eviction of the respondent from the demised premises. The summons were received by the respondent and he appeared in Court on 25th July, 1993. Thereafter neither the written statement was filed, despite number of adjournments have been granted, nor did anyone appear on or after 4th March, 1994 which was the last date by which the written statement had to be filed. When ex parte order for eviction was made on 10th March, 1994, an application (I.A. No. 986/94) was filed on 4th April, 1994 to set aside the ex parte order. Along with this application, the written statement was also filed. In the written statement, it was contended that the respondent was entitled to protection under the Tamil Nadu Buildings (Lease and Rent Control) Act and also under the Madras City Tenants Protection Act. The application under the Madras City Tenants Protection Act should have been filed on or before 5th August, 1993. This was not done by the respondent. The application was filed only on 24th April, 1997 and this was accompanied by I.A. No. 927/97 praying for condonation of delay of 1510 days. The application for condonation was dismissed but the suit was restored and the ex parte order was set aside. It is against the order dismissing the application for condonation of delay that a revision petition was filed before the High Court which was allowed by the impugned judgment.

3. From the documents on record, we find that in I.A. No. 986/94 it was stated by the respondent before the trial Court that on 10th March, 1994, which was the date of hearing, the respondent had gone to Madras on a business trip and, therefore, he could not be present in Court on that day. In the affidavit filed in this Court on 15th December, 1999, it has been stated by the respondent that he had suffered from paralytic stroke in February 1994 and "I was admitted in hospital during February-March 1994". It is quite obvious that one of the two statements is incorrect. We are not inclined to accept the correctness of the statement made in the affidavit filed in this Court because the said statement is not supported by any document to show the alleged illness of the respondent. On the other hand, I.A. No. 986/94 had been filed soon after 10th March, 1994 and it had not been stated in the said I.A. that the respondent had suffered any paralytic stroke. This being so, the High Court should not have presumed that the default was on the ground of paralytic stroke which had been allegedly suffered by the respondent.

4. In this view of the matter, the appeal is allowed and the impugned judgment of the High Court is set aside. No costs.

Appeal allowed.