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2006 DIGILAW 3133 (MAD)

M. Kandasamy v. R. Thangavelu & Another

2006-11-17

S.ASHOK KUMAR

body2006
Judgment :- (Civil Revision Petition under Section 115 of C.P.C., against the Order and Decretal order dated 13.10.2004, passed by the Principal District Judge, Namakkal in I.A.No.2082 of 2004 in M.C.O.P.No.276 of 2002.) This Civil Revision Petition is filed against the order passed by the learned Principal District Judge, Namakkal in dismissing the I.A.No.2082 of 2004 in M.C.O.P.No.276 of 2002 filed by the petitioner seeking to condone the delay of 747 days in filing the application to restore the M.C.O.P. No.276 of 2002, dismissed for default. 2. The brief facts are as follows:- The petitioner herein is the claimant in M.C.O.P.No.276 of 2002 on the file of the Principal District Judge, Namakkal. He has filed the said O.P. against the Respondents, praying for compensation of Rs.1,50,000/- towards the injuries sustained by him in an accident took place on 27.1.2002. The Respondents are the owner of the vehicle involved in the accident and the Insurer of the said vehicle. 3. When the case was posted before the trial Court for evidence on 25.6.2002, the petitioner failed to appear. Therefore, the M.C.O.P. was dismissed for default on that day. Thereafter, the petitioner filed I.A.No.2082 of 2004 to condone the delay of 747 days in filing the application to restore the main O.P. on the ground that as he was suffering from jaundice and he has not duly received the letter written by his counsel, he could not meet his counsel in time and he met his counsel only after he recovered from the illness and then only he came to know about the order of dismissal of the M.C.O.P. 4. The learned District Judge dismissed the said application on the ground that the delay is an extraordinary one and no proper explanation is forthcoming for the entire period of delay from 25.6.2002 till 9.8.2004. Aggrieved over the said order, this Civil Revision has been filed. 5. It is true that the petitioner was suffering from jaundice may not be an acceptable ground for the entire period of delay of 747 days. However, an opportunity must be given to the petitioner to contest his case on merits. 6. Aggrieved over the said order, this Civil Revision has been filed. 5. It is true that the petitioner was suffering from jaundice may not be an acceptable ground for the entire period of delay of 747 days. However, an opportunity must be given to the petitioner to contest his case on merits. 6. The learned counsel appearing for the second Respondent Insurance Company submits that if the delay is condoned, ultimately while allowing the main petition the interest will be computed for the entire period for which the petitioner alone is responsible and the second Respondent is not responsible. 7. Considering the facts and circumstances of the case, this Civil Revision Petition is allowed subject to the condition that if award is passed in favour of the petitioner after the trial of the M.C.O.P. the period from 25.6.2002 till 10.8.2004 will be excluded from calculating interest for the said award amount. With these observations, this Civil Revision Petition is allowed. No costs.