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2009 DIGILAW 4566 (MAD)

T. P. Kolanthasamy & Others v. Balusamy & Others

2009-10-29

M.VENUGOPAL

body2009
Judgment :- The petitioners/respondents 4 to 6/defendants 4 to 6 have filed this civil revision petition as against the order dated 11. 2008 in I.A.No.292 of 2005 in I.A.No.176 of 2005 in O.S.No.82 of 2005 passed by the learned II Additional District Munsif, Bhavani. 2. The trial Court, while passing order in I.A.No.292 of 2005, has, inter alia, observed that since the main suit O.S.No.82 of 2005 has been filed for partition only if the matter is decided on full fledge merits, a decision can be arrived at and in that view, has allowed the application in directing the respondents 1 and 2/plaintiffs to pay a cost of Rs.250/- each to the petitioners/respondents 4 to 6 and 7th respondent/12th respondent to be paid on or before 23.01.2008 filed by the respondents 1 and 2/plaintiffs under Section 5 of the Limitation Act praying to condone the delay of 54 days in filing an application under Order 9 Rule 9 of Civil Procedure Code. 3. In the affidavit in I.A.No.292 of 2005 filed by the respondents 1 and 2/plaintiffs before the trial Court, it is among other things observed that they have filed the suit against the defendants for partition and for separate possession of the suit properties and that I.A.No.176 of 2005 has been filed by them to restore the suit which has been dismissed on 12.04.2005 and on 17.08.2005 the said I.A.No.176 of 2005 has been posted for enquiry and since the first petitioner has injured his right angle while he has been engaged in gardening work, on 10.08.2005 he has gone to his uncle’s village Erampalayam and has taken sidda treatment at Singiripalayam and further has taken 3 months treatment continuously and on 18.08.2005 his father has come to his uncle’s village and see him and after his return, he has been missing and later he has got the information that his father has expired in the road accident on 18.08.2005 and moreover, his brother-second plaintiff has gone to North India in connection with his driving work and therefore, he has not been in a position to appear before Court on 17.08.2005 and take proper steps and further, only when he met his counsel on 011. 2005 he has come to know about the details of his case and hence, there has occasioned the delay of 54 days in projecting the present application to restore I.A.No.176 of 2005 to the trial Court’s file and therefore, has prayed for allowing the application. 4. Before the trial Court, the first petitioner/4th respondent has denied the averments made by the respondents 1 and 2/plaintiffs and further it is mentioned that earlier the suit has been dismissed on 09.06.1999 and an I.A.No.431 of 1999 has been filed and on payment of cost of Rs.200/- the suit has been again taken on file and thereafter when the suit has been posted for enquiry on 16.04.2003 the respondents 1 and 2/plaintiffs and their counsel have not appeared resulting in dismissal of the suit. Thereafter, I.A.No.256 of 2004 has been filed on the file of the learned District Munsif, Bhavani and again the said application has been allowed on payment of cost and once again the suit has been taken on file and subsequently, on 12.04.2005 when the respondents 1 and 2/plaintiffs have not appeared before the Court in connection with the enquiry of the suit, the same has been dismissed and later I.A.No.176 of 2005 has been filed and since the respondents 1 and 2/plaintiffs and their counsel have not appeared, again the same has been dismissed and it is quite evident that the respondents 1 and 2/plaintiffs have no care and interest to conduct the case and therefore, the application No.292 of 2005 filed by them is not maintainable in law and has prayed for dismissal of the application. 5. It is to be noted that the main suit O.S.No.82 of 2005 has been filed by the respondents 1 and 2/plaintiffs for partition and separate possession of the respondents 1 and 2/plaintiffs share etc. In this connection, it is to be pointed out that on going through the averments of the counter filed to I.A.No.292 of 2005, it is crystal clear that the respondents 1 and 2/plaintiffs are in the regular habit of filing interlocutory applications like I.A.No.176 of 2005, I.A.No.431 of 1999 and I.A.No.256 of 2004 etc. In this connection, it is to be pointed out that on going through the averments of the counter filed to I.A.No.292 of 2005, it is crystal clear that the respondents 1 and 2/plaintiffs are in the regular habit of filing interlocutory applications like I.A.No.176 of 2005, I.A.No.431 of 1999 and I.A.No.256 of 2004 etc. and on all occasions the trial Court has been good enough to allow the said applications on payment of cost and the main suit has been restored to file on those occasions and once again allowing the I.A.No.176 of 2005 to go for dismissal the respondents 1 and 2/plaintiffs have filed present I.A.No.292 of 2005 to restore the same and in that process, there has occasioned the delay of 54 days. Therefore, this is a clear case of indifferent attitude adopted by the respondents 1 and 2/plaintiffs and certainly they have not diligent in conducting the main suit so as to enable the Court to render a decision on merits on all issues in a complete and comprehensive way. 6. Ordinarily, a litigant does not stand to benefit by preferring an application belatedly under Section 5 of the Limitation Act and in fact, he runs a serious risk. Moreover, refusing to condone delay can result in meritorious matter being thrown out at the very threshold and cause of justice being defeated. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. 7. Since substantial justice will have to be delivered to the parties overriding technical considerations and by allowing I.A.No.292 of 2005 the maximum thing that can happen is the main cause of the parties will be decided on merits of course due opportunities being provided to the parties and moreover, a Court of Law should adopt a meaningful, purposeful and pragmatic approach in dealing with Section 5 Application and not to adopt a pedantic approach and in that view of the matter, this Court comes to an inevitable conclusion that the exercise of discretion by the trial Court in allowing the I.A.No.292 of 2005 subject to the condition of payment of cost as specified thereto does not require any interference in the hands of this Court sitting in revision and resultantly, the civil revision petition fails. 8. 8. In the result, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. The order passed by the trial Court in I.A.No.292 of 2005 dated 11. 2008 is confirmed for the reasons assigned by this Court in this revision. Having regard to the facts and circumstances of the case, the parties are directed to bear their own costs. Consequently, connected miscellaneous petition is closed.