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2007 DIGILAW 1176 (MAD)

Manickavasagam v. Ammayappa Pillai

2007-04-02

S.MANIKUMAR

body2007
Judgment :- S. Manikumar, J. 1. The appellant has filed a Suit in O.S. No.364 of 2000, which came to be dismissed on 28.1.2003, against which, he filed an Appeal, which was transferred from Sub-Court to the Principal District Judge, Srivilliputhur and renumbered as A.S .No.109 of 2003. The said Appeal was posted for hearing on 25.4.2005 to let in additional evidence. As there was no representation on that day, the Appeal was dismissed for default. Thereafter, the appellant filed I.A. No.291 of 2005 for restoration of the Appeal. 2. The respondents in the Restoration Application filed a counter affidavit and contended that the Appeal was posted for hearing on 8.4.2005 and at the request of the petitioner; it was posted for arguments as last chance on 19.4.2005. Again the matter was adjourned to 21.4.2005 and finally listed for arguments on 25.4.2005. He further submitted that the contention of the petitioner that he wanted to let in additional evidence is incorrect. Since, the counsel for the petitioner reported "no instructions" before the Court; the Appeal was dismissed for default. He further submitted that the contentions that the appellant was present in the Court on 25.4.2005 and his name was called out by the Court before the order of dismissal are incorrect. He further submitted that though the appellant was very well aware of the dismissal of the Appeal, he has not chosen to file any Application to set aside the order of dismissal within 30 days, statutory period, and no reasons have been assigned for filing the Restoration Application, after considerable delay. 3. The learned Appellate Judge, upon considering the pleadings and submissions of both parties, dismissed the petition on the grounds that the counsel on record represented "no instructions" to the Court and he has also made an endorsement to that effect and the above Petition was filed beyond the statutory period of 30 days. Aggrieved by an order and decree in I.A.No.291 of 2005 in A.S.No.109 of 2003, the appellant has preferred this Appeal. 4. Learned counsel for the appellant submitted that the Appellate Court ought not to have dismissed the petition on the ground that it was filed beyond the period of limitation, since Registry did not raise any objection regarding limitation when it was presented. 4. Learned counsel for the appellant submitted that the Appellate Court ought not to have dismissed the petition on the ground that it was filed beyond the period of limitation, since Registry did not raise any objection regarding limitation when it was presented. He further submitted that if Registry had objected to the maintainability of the Application, the appellant would have given an opportunity to file an Application to condone the delay in seeking to set aside the exparte decree. He further submitted that considering the nature of relief sought for in the Suit, the Court below ought not to have dismissed the Petition on the ground of technicalities, which would defeat the principles of natural justice. He further submitted that the Court should be liberal while dealing with the matters relating to restoration or condonation of delay and what has to be considered is only the substantial justice. Technicalities should not pay way in deciding such Application. He also submitted that the Court below ought to have considered the background and age of the appellant and should have given opportunity to prove his title to the property and that the dismissal of the petition, has resulted irreparable injury, which amounts to shut down his case on mere technical ground. 5. On the other hand, learned counsel for the first respondent submitted that despite several adjournments, Appeal was not argued, it was adjourned periodically and finally, the counsel for the appellant has reported "no instructions" before the Court and the appellant was also not present when his name was called out before passing the order. He further submitted that the Lower Appellate Court has rightly considered the lethargic attitude of the appellant in approaching the Court belatedly and therefore, the order of dismissal is proper. 6. The Lower Appellate Court proceeds on the footing that the counsel for the appellant had reported the Court in writing "no instructions". Whenever the counsel is engaged to defend on behalf of the litigant, it is his duty to inform his client about the hearing of the case and if there is any difficulty, in appearance, he must inform his client by registered post, the reasons for his non-appearance or inability to appear and only on receipt of the postal acknowledgement, he can represent "no instructions" to this Court. 7. 7. In the instant case, the order of the Appellate Court does not reveal as to whether the counsel for the appellant sent any registered letter to his client about his inability appear on the specific date. Moreover, if Registry had not numbered the restoration, the appellant would have filed necessary Application seeking condonation of delay in filing the Restoration Petition. Even the Court could have directed the appellant to file appropriate Petition for condonation. For the fault of Registry in numbering the Restoration, it may not be proper to shut down the case, by defence of limitation. 8. Courts have consistently held that there should be a pragmatic approach in dealing with the Restoration Application filed with delay and mere technicalities should not against the litigants. In the instant case, Lower Appellate Court has failed to consider that it is not the fault of the appellant, in moving Application for restoration, without necessary Petition for condonation. 9. In Gulabo Vs. Nagar Palika Phalodi and Others, AIR 2003 NOC 197 (Raj), the Court has held that dismissal of the Suit for non-prosecution on the ground that the counsel pleaded "no instructions" is not correct. 10. In view of the above, I am of the considered opinion, the Lower Appellate Court failed to consider his jurisdiction in proper, prospective and erroneously dismissed the petition for restoration. Therefore, the order passed by Principal District C. Virudhunagar District at Srivilliputtur in I.A. No.291 of 2005 in A.S. No. 109 of 2003 dated 28.4.2006 is set aside and the Civil Miscellaneous Appeal is allowed. No costs. 11. Since the Appeal is of the year 2003, learned District Judge is directed to dispose the Appeal after issuing notice to both parties and their respective counsel within a period four weeks from the date of receipt of a copy of this order. C.M.A. allowed.