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2008 DIGILAW 1167 (MAD)

Ramasamy v. Pappammal

2008-04-03

A.C.ARUMUGAPERUMAL ADITYAN

body2008
Judgment :- This Civil Revision Petition has been directed against the order passed in I.A.No.677 of 2005 in O.S.No.431 of 1999 on the file of Court of the Principal District Munsif, Virudhachalam. 2. The said application was filed under order 9 Rule 9 (1) of C.P.C., for restoring the suit O.S.No.431 of 1999 which was dismissed for default. After contest the said application was allowed by the Learned District Munsif on terms of Rs.500/-. The learned District Munsif has directed the petitioner in I.A.No.677 of 2005 to pay the cost of Rs.500/- to the respondent on or before 23. 2005. Since the petitioner in I.A.No.677 of 2005 has failed to comply with the directions, the said application was dismissed by the learned Principal District Munsif on 23. 2005. The said order of dismissal is under challenge in this revision. 3. The learned counsel appearing for the respondent referring to an earlier order passed by this Court in C.R.P.(NPD) No.2126 of 2007 dated 111. 2007 (C. Balu..Petitioner/Defendant -Vs- 1. B.Selvarani 2.B.Kavitha. Respondents/Plaintiffs) would contend that in a similar circumstances this Court has dismissed the revision. On a careful reading of the order passed in C.R.P.(NPD) No.2126 of 2007 would show that the order passed in I.A.No.99 of 2005 in O.S.No.48 of 2004 on the file of the Principal Subordinate Judge, Nagapattinam was under challenge in C.R.P.(NPD) No.2126 of 2007. I.A.No.99 of 2005 in O.S.No.48 of 2004 filed under section 5 of Limitation Act to condone the delay of 228 days in filing the petition to set aside the exparte decree. The learned Principal Subordinate Judge, Nagapattinam after finding that there was no sufficient reasoning shown in the affidavit to the petition in I.A.No.99 of 2005 for condoning the delay of 228 days has dismissed that application. Only that order of dismissal was under challenge in C.R.P.(NPD)No.2126 of 2007. 4. After hearing the learned counsels on both side and after going through the judgments relied on by the revision petitioner (III (2007) BC 692 (Kulwant Singh Vs. Balhar Singh) and also 2007 (4) CTC 449 (Arun Alexander Lakshman Vs. Only that order of dismissal was under challenge in C.R.P.(NPD)No.2126 of 2007. 4. After hearing the learned counsels on both side and after going through the judgments relied on by the revision petitioner (III (2007) BC 692 (Kulwant Singh Vs. Balhar Singh) and also 2007 (4) CTC 449 (Arun Alexander Lakshman Vs. A.P. Vedavalli) and holding that the above said ratios are not applicable to the facts of the said case, the revision petition in C.R.P.(NPD) No.2126 of 2007 was dismissed confirming the order passed by the learned Principal Subordinate Judge, Nagapattinam in I.A.No.99 of 2005 in O.S.No.48 of 2004 on the file of Principal Subordinate Judge, Nagapattinam. The facts in C.R.P.(NPD) No. 2126 of 2007 is not applicable to the facts of the present case. It is pertinent to note in this case, that the order passed in I.A.No.677 of 2005, that is the order allowing the I.A.No.677of 2005 on terms was not challenged by the respondent in I.A.No.677 of 2005. Since the cost awarded in I.A.No.677 of 2005 was not paid by the petitioner in I.A.No.677 of 2005 in O.S.No.431 of 1999, the learned Principal Munsif, Virudhachalam had dismissed I.A.No.677 of 2005. 5. It is further pertinent to note that there was no delay in filing a petition under order 9 Rule 9 (1) of C.P.C. to restore O.S.No.431 of 1999. 6. Under such circumstances, the facts of the case on hand differ from the facts in C.R.P.(NPD) No.2126 of 2007. Under such circumstances, the contention of the learned counsel appearing for the respondent that same yardstick used in C.R.P.(NPD) No.2126 of 2007 is to be applied in the present Civil Revision Petition also cannot hold any water. 7. Under such circumstances, the civl revision petition is allowed and the order passed in I.A.No.677 of 2005 in O.S.No.431 of 1999 on 23. 2005 is set aside with a direction that the revision petitioner herein shall deposit Rs.500/-awarded towards the cost in I.A.No.677 of 2005 on or before 14. 2008 to the credit of O.S.No.431 of 1999 on the file of the Principal District Munsif, Virudhachalam. On such deposit, the respondent in I.A.No.677 of 2005 in O.S.No.431 of 1999 is entitled to withdraw the same. The Civil revision petition shall deemed to have been dismissed, if the revision petitioner fails to comply with the above condition. 2008 to the credit of O.S.No.431 of 1999 on the file of the Principal District Munsif, Virudhachalam. On such deposit, the respondent in I.A.No.677 of 2005 in O.S.No.431 of 1999 is entitled to withdraw the same. The Civil revision petition shall deemed to have been dismissed, if the revision petitioner fails to comply with the above condition. The learned counsel for the respondent would also represent that due to the delaying tactics of the revision petitioner the property scheduled to O.S.No.431 of 1999 has already been sold. If it is so, that is a matter to be considered at the time of trial.