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2007 DIGILAW 3756 (MAD)

Ramayee & Others v. Palaniammal

2007-11-22

M.VENUGOPAL

body2007
Judgment :- The revision petitioners are the defendants in O.S.No.338 of 1995 on the file of the First Additional District Munsif Court, Bhavani. The respondent herein is the plaintiff in the suit. 2. The respondent/plaintiff has filed I.A.No.231 of 2003 before the Trial Court under Section 5 of the Limitation Act, praying to condone the delay of 971 days in filing the application to set aside the dismissal order of suit dated 012. 1998 for default. The Trial Court has allowed the I.A.No.231 of 2003 in O.S.No.338 of 1995 on 15.09.2003 assigning the reason that no counter was filed and that respondents were called in Court and they remained absent. 3. The learned counsel for the revision petitioners/defendants contended that the Trial Court has not given adequate opportunity to the petitioners herein to file their counter and inspite of the request made by the learned counsel for the petitioners herein, no adjournment was granted and therefore, the order passed by the learned First Additional District Munsif, Bhavani suffers from material irregularity and to be interfered with by order of this Court. 4. It is not in dispute that in I.A.No.231 of 2003 notice was given to the other side namely, the revision petitioners/defendants and they opposed the application and notice of hearing by 05.09.2003 was ordered on 29.08.2003 and on 05.09.2003, notice of hearing was given in I.A.No.231 of 2003 and the lower Court granted time for filing counter by 15.09.2003 and on 15.09.2003, counter was not filed and that respondents were called absent and set exparte and the I.A.No.231 of 2003 was allowed by the Trial Court. From these factual scenario as borne out by record, it cannot be said that no opportunity was given to the revision petitioners/defendants to file their counter. Per contra, due opportunity was given to file counter and the same was not availed of by the revision petitioners, in the considered opinion of this Court. Furthermore, there is nothing on record to show that further time for filing counter was prayed for by the revisions petitioners and refused by the Court below when the I.A.No.231 of 2003 came up for hearing on 15.09.2003. 5. Furthermore, there is nothing on record to show that further time for filing counter was prayed for by the revisions petitioners and refused by the Court below when the I.A.No.231 of 2003 came up for hearing on 15.09.2003. 5. In any event, no prejudice has been caused to the revision petitioners in allowing the application under Section 5 of the Limitation Act for condonation of delay, since the Courts are there not to harp on technicalities and to deliver substantial justice to the parties in dispute, more so when the main suit is only for partition of family properties. As a matter of fact, processual law is always subservient to and is in aid of justice. 6. In the circumstances, the order passed in I.A.No.231 of 2003 dated 15.09.2003 by the Trial Court does not suffer from any illegality or material irregularity and in that view of the matter, the Civil Revision Petition is dismissed. The order passed in I.A.No.231 of 2003 in O.S.No.338 of 1995 is confirmed. There shall be no order as to costs. Consequently, connected miscellaneous petition is also dismissed.