R. Venkatachalamoorthy, Coimbatore District v. R. Rajini
2012-06-25
V.DHANAPALAN
body2012
DigiLaw.ai
Judgment :- 1. This Civil Revision Petition has been filed calling in question the order dated 25.01.2012 passed in I.A. No: 599 of 2011 in O.S. No: 811 of 2007 on the file of the Additional District and Sessions Judge, Fast Track Court No: 2, Coimbatore. 2. Revision Petitioner is the 1st defendant in the suit O.S. No: 811 of 2007. Plaintiff is the 1st respondent herein. When the suit was posted in the list on 22.09.2010 for trial, as the plaintiff was not available, her counsel reported no instruction and the suit was dismissed for default. Subsequently, after coming to know that the suit has been dismissed for default, plaintiff filed I.A. No: 599 of 2011 to restore the suit. The reason for non appearance on 22.09.2010 was explained by the plaintiff in the affidavit by stating that she was engaged in her son's wedding. The said interlocutory application was resisted by the 1st defendant by stating that the plaintiff's advocate has reported no instruction; that the plaintiff has not filed any proof to establish that she was engaged in her son's wedding; that the plaintiff was not interest in pursuing the matter before the previous presiding officer and hence, she allowed the matter to be dismissed for default and later in order to drag on the proceedings, the present application is filed. However, by the impugned order, the trial Court has allowed the said I.A. and aggrieved by the said order of restoration, the 1st defendant in the suit is before this Court in the present revision. 3. Heard Mr. Bharath Kumar learned counsel appearing for the revision petitioner. He would mainly submit that the plaintiff has not given any valid reason both for her non appearance and for her advocate reporting no instruction. Even then, the learned trial Judge has allowed the interlocutory application without looking into the conduct of the plaintiff in allowing the suit to get dismissed in a casual manner and then filing an application for restoration by the very same advocate who has reported no instruction from the plaintiff. Hence, the restoration order has got to be set aside. 4. Admittedly, the revision petitioner is the 1st defendant in the suit. The suit was posted in the list on 22.09.2010 for trial. On that day, as the plaintiff was not present, her counsel reported no instruction and the suit was dismissed for default.
Hence, the restoration order has got to be set aside. 4. Admittedly, the revision petitioner is the 1st defendant in the suit. The suit was posted in the list on 22.09.2010 for trial. On that day, as the plaintiff was not present, her counsel reported no instruction and the suit was dismissed for default. From a perusal of the materials documents made available, it is seen that for the first time when the matter was listed for trial, the plaintiff was not present and her advocate has reported no instruction and on the very same day, the suit was dismissed for default. The reason given by the plaintiff for her non appearance was that she was engaged in her son's wedding and hence, she could not contact her counsel. This reason was accepted by the trial Judge who allowed the interlocutory application. It could also be seen that the application for restoration was filed within a month of dismissal of the suit which shows that the plaintiff is not interested in dragging on the proceedings. 5. Thus, the reasoning given by the learned trial Judge for allowing the interlocutory application is an acceptable one and, there is no scope to interfere by exercising jurisdiction under Article 227 of the Constitution of India. Accordingly, finding no merit, this Civil Revision Petition is dismissed. Connected miscellaneous petition is also dismissed. There shall be no orders as to the costs.