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2012 DIGILAW 1820 (MAD)

B. Rathinam v. P. Kuppusamy

2012-04-10

G.RAJASURIA

body2012
Judgment :- 1. Animadverting upon the order dated 31.01.2012 passed by the learned Additional District cum Sessions Judge (Fast Track Court No.5) Tiruppur in I.A.No.16 of 2012 in O.S.No.149 of 2011, this civil revision petition is focussed. 2. The parties are referred to hereunder according to their litigative status and ranking before the lower Court. 3. A resume of facts absolutely necessary and germane for the disposal of this revision would run thus: The respondent/plaintiff filed the suit for specific performance in the Principal District Court, Coimbatore. The defendants entered appearance and filed their written statement. At the trial stage, it appears the matter was transferred to the Fast Track Court, Tiruppur, however, there in the Fast Track Court, the suit was dismissed for default, owing to the non appearance of the plaintiff. Subsequently, the plaintiff filed I.A.No.16 of 2012 under Section 5 of the Limitation Act to get the delay of 74 days condoned in filing the application to get the suit restored to file. After hearing both sides, the lower Court condoned the delay, subject to payment of cost of Rs.1,500/-payable by the plaintiff to the defendants. Being aggrieved by and dissatisfied with the order of the lower Court this revision has been focussed on various grounds. 4. The learned counsel for the revision petitioners/defendants would pilot his arguments, the gist and kernel of them would run thus: The revision petitioners did not depose as witnesses to fortify and buttress their averments in the affidavit. The lower Court took it for gospel truth the averments in the affidavit of the petition and simply condoned the delay. After the dismissal of the suit, the revision petitioners/defendants filed a separate suit for injunction and in that the suit summons was sent to the respondent herein. According to him, only on receipt of such suit summons in the injunction suit filed by the defendants, he came to know about the dismissal of his suit O.S.No.149 of 2011. Even though the respondent/plaintiff herein received injunction suit summons on 01.12.2011, he did choose to file an application under Section 5 of the Limitation Act only on 02.01.2012 and as such, absolutely there are no bonafides on the part of the respondent/plaintiff in prosecuting his suit for specific performance. Accordingly, the learned counsel for the revision petitioners would pray for setting aside the order of the lower Court. 5. Accordingly, the learned counsel for the revision petitioners would pray for setting aside the order of the lower Court. 5. Whereas, in a bid to torpedo and pulverise and to make mincemeat of the arguments as put forth and set forth on the side of the revision petitioners, the learned counsel for the respondent/plaintiff would submit that his client is a septuagenerian, so to say, 72 years old and he was virtually not informed about the case having been transferred from the Principal District Court, Coimbatore to the Fast Track Court, Tiruppur and there was no willful default on his part in prosecuting the suit for specific performance. The suit for specific performance itself was of the year 2011 and the suit itself was dismissed for default on 20.09.2011 and that cannot be termed as an old suit also. Owing to the old age and disability, the plaintiff could not follow the hearing dates. 6. The point for consideration is as to whether there is any perversity or illegality in the order passed by the lower Court in condoning the delay of 74 days in filing the application to get the suit restored to file? 7. At the outset, I would like to point out that the delay of 74 days in my considered opinion cannot be termed as enormous or huge, but no doubt, a litigant is expected to be diligent in prosecuting his matter in the litigative process. He cannot allow grass to grow under his feet and simply sleep over the matter. In this case, even after the receipt of the suit summons in the injunction suit on 01.12.2011, the plaintiff has not immediately swung into action and taken steps to file the application under Section 5 of the Limitation Act. For such delay, the plaintiff would contend that he was suffering from ill health, i.e, viral fever. The lower Court believing the version of the respondent/plaintiff condoned the delay by imposing a cost of Rs.1,500/-. I am of the considered view that the discretion exercised by the lower Court cannot be termed as perverse or illegal for interfering in this revision. However I am of the view that the cost of Rs.1,500/-should be enhanced to Rs.2,000/- so that the revision petitioners also would not feel that they have been prejudiced in the litigative process. I am of the considered view that the discretion exercised by the lower Court cannot be termed as perverse or illegal for interfering in this revision. However I am of the view that the cost of Rs.1,500/-should be enhanced to Rs.2,000/- so that the revision petitioners also would not feel that they have been prejudiced in the litigative process. I am also of the view that transfer of case from one Court to another certainly causes some dislocation in prosecuting the matter and that fact also should not be lost sight of. 8. Considering pro et contra, viewing it in an over all manner, I am of the view that the revision petition could be ordered by confirming the order of the lower Court, however with slight modification that the cost should be enhanced from Rs.1,500/- to Rs.2,000/-(Rupees two thousand only) payable by the plaintiff to the defendants within a period of fifteen days from this date. Accordingly, this civil revision petition is ordered. No costs. Consequently, connected miscellaneous petition is closed.