CRP 115/2009 BEFORE THE HON’BLE MR JUSTICE AMITAVA ROY 1. The revisional jurisdiction of this Court under section 115 of t he Code of Civil Procedure Code, 1908 (as amended) (for short hereafter referred to as the Code) read with section 151 of the Code has been sought to be invoked to annul the order dated 2/1/2009 passed by the learned Civil Judge, Jorhat, in Misc. (J) Case No. 29/2008 registered under section 5 of the Limitation Act for condonation of delay in filing the accompanying application under Order IX Rule 13 of the Code by the present petitioner. By this application, the revision pet itioner had prayed for setting aside the ex-parte decree dated 14/2/2007 passed in Money Suit No. 18 of 2006 instituted by the present opposite party against hi m. 2. I have heard Mr. N. Choudhury, learned Counsel for the petitioner and Mr . R. Dubey, learned Counsel for the opposite party. 3. As plaintiff, the opposite party instituted the aforementioned suit agai nst the petitioner herein for a decree for Rs. 12,56,491/- with interest thereon . According to the petitioner, the summons of the suit was not served on him and , therefore, he could not contest the same. The suit was eventually decreed ex-p arte on 14/2/2007. The petitioner has alleged fraud on the part of the opposite party in effecting purported service of summons on him. According to him, he ca me to know for the first time about the decree on 9/1/2008 from a close friend o f his at the time of initiation of the proceeding for execution thereof. On rece ipt of the certified copy of the judgment and order dated 14/2/2007 on 30/1/2008 at Chennai, where he was then residing, he could not take immediate steps as h e was suffering from Jaundice/Asthma, and it was after his recovery that he coul d transmit the documents to his counsel at Jorhat with necessary instructions. 4. He thereafter travelled to Jorhat and an application under Order IX Rule 13 read with section 151 of the Code for setting aside the ex-parte decree date d 14/2/2007 was filed. Meanwhile a delay of 78 days had occurred. Along with the said application, the petitioner thus submitted a medical certificate in endor sement of his plea of being ill suffering from jaundice/asthama during the relev ant period. An application for condonation of delay in filing the application wa s also filed stating the same grounds. The opposite party in its written objecti on against both the prayers in substance pleaded that the summons in the suit ha d been in fact served on the petitioner. It further stated that following the e x-parte judgment and decree it also filed a caveat before this Court and had for warded a copy thereof by speed post under receipt No. EE8477 892961 dated 21/9/2 007 to the opposite party and as apparent on an enquiry being made by it from th e concerned postal authorities the same was also delivered to him on 29/9/2007. According to it, the execution petition filed by it was also transferred to the Court of the Principal District Judge at Tiruvallur, Madras, wherefrom a notice was also issued to the petitioner informing him about the pendency of the said p roceeding thereat. From all these, the opposite party sought to contend that the petitioner’s plea of having come to learn about the ex-parte decree only on 9/1 /2008 was untrue and thus unacceptable. It also laid the burden on the petitione r to prove the factum of his illness as asserted by him. 5. The petitioner did not adduce any evidence in support of any assertion e ither in the application for condonation of delay or in the one under Order IX Rule 13 of the Code. 6. The learned Court below, on a consideration of the pleadings of the part ies was of the view that the medical certificate produced by the petitioner did not support his plea that at the relevant time, he was suffering from jaundice a nd asthama though it indicated certain symptoms like severe giddiness, vomiting and chest pain. According to it, the omission on the part of the petitioner to a dduce evidence in support of his averments made in the applications left the sam e unproved in law and that, therefore, there was no sufficient explanation for c ondonation of delay in filing the application for setting aside the ex-parte dec ree. Both the applications were thus rejected. 7. Mr. Choudhury has persuasively argued that as the authenticity of the me dical certificate produced by the petitioner as such has not been questioned by the opposite party and the symptoms of the ailments as demonstrated thereby full y substantiate his plea of being suffering from jaundice and asthama at all rel evant times, the learned Court below in passing the impugned order erred in the exercise of its jurisdiction vested in law and, therefore, in the interest of ju stice and to prevent irreparable loss and prejudice to him, the same ought to be interfered with. The learned Counsel in course of the arguments also indicated the inability on the part of the petitioner to take timely steps even otherwise in view of certain threat perception at Jorhat and pleaded that as the decretal amount was substantial, he is entitled to one opportunity to contest the suit on merits in the interest of justice 8. Mr. Dubey in reply has contended that the petitioner having failed to co ntest the suit even being served with the summons thereof without any justifiabl e cause and the ex-parte decree having been passed on the basis of the materials on record, no interference with the impugned order is warranted. Abiding by the stand of the opposite party in full, the learned Counsel has maintained that as it would be evident from the contemporaneous records that the petitioner was fu lly aware of the institution, pendency and disposal of the suit at all relevant times, his belated plea of ignorance thereof as well as illness is untenable and the learned Court below was perfectly justified in passing the impugned order. 9. I have extended my cautious consideration to the rival pleadings and the arguments advanced. A bare perusal of the medical certificate in original avail able in the Trial Court’s records disclose that for the period 11.01.2008 to 31 .05.2008, the petitioner has been diagnosed to be suffering from diabetes melli tus, hypertension, and hypo thyroid status and had been advised rest for restor ation of his health by his attending Doctor. This certificate though mentions ab out investigations done in connection with severe giddiness, vomiting and chest pain significantly does not mention about jaundice and asthama. Though the afore said symptoms may have some perceptible nexus with jaundice and asthama, the sam e per se do not unequivocally prove that he in fact had been suffering from the same at the relevant period. To this extent, the averments of his ailments made in his application are not wholly supported by this document. Apart therefrom, attention of this Court has been drawn to the A/d card which it is stated at th e bar had accompanied the summons in the suit addressed to the petitioner to 46/ 18 Kamraj Nagar, Mannarpet, Chennai 600050, Tamil Nadu and delivered thereof to him on 11/9/2006. This A/d card was returned to the learned Court below and rec eived by it on 23/10/2006. Having regard to the dates as above, this definitely is relatable to a stage of the suit before the ex-parte decree was passed. 10. Aside therefrom, the sworn averments made in the written objections of t he opposite party to the effect that the summons of the suit had been served on the petitioner, the notice of the caveat application filed by it had been delive red to him on 29/9/2007 and that the proceedings of the execution case vis-à-vis the decree had been transferred to the Court of the Principal District Judge at Tiruvallur, Madrass, have remained uncontroverted. No endeavour noticeably ha s been made by him to adduce evidence on oath to support his averments bearing o n the plea of his illness and unawareness of the pendency of the suit and the de cree passed therein. 11. The prayer for condonation of delay in law though is normally construed liberally, the explanation therefor has to be reasonable and convincing. The ma terials by way of explanation to say the least have to be cognizable in law apar t from being persuasive in nature. Delay cannot be condoned as it has been held in a catena of decisions merely on compassion and sympathy. Judged by the above yardsticks neither the grounds put forward by the petitioner nor the supportive steps taken by him can be regarded to be sufficient to condone the delay in fili ng the application for setting aside the ex-parte decree. 12. On an analysis of the materials on record, in the above factual premise, the findings recorded by the learned Trial Court cannot be denounced as absurd, perverse or in any way in defiance of logic. Having regard to the constricted s cope of the revisional jurisdiction of this Court, I do not find sufficient and convincing reason to interfere with the order impugned. This petition therefore lacks in merit and is rejected. No costs.