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2013 DIGILAW 1935 (MAD)

Radhabai v. Padmavathi

2013-06-06

K.RAVICHANDRA BAABU

body2013
JUDGMENT 1. This civil revision petition is filed against an order made in I.A.No.202 of 2010 in I.A.No.1090 of 2006 in O.S.No.40 of 2004 on the file of the I Additional District Judge, Erode. 2. The petitioners herein are the defendants in O.S.No.40/2004, which was filed by the respondents for partition. The said suit came to be dismissed for default on 01.11.2006. The respondents herein as plaintiffs filed I.A.No.1090/2006 for restoration of the suit on 30.11.2006, i.e., within 30 days from the date of dismissal of the suit for default. When the said application was taken up for hearing on 31.07.2007, the respondents herein did not appear and consequently, the said application was dismissed for default on 31.07.2007. The respondents filed an application in I.A.No.202 of 2010 on 27.08.2007 to restore I.A.No.1090/2006, within 30 days from the date of dismissal of the said application. The said application was returned by the court for effecting certain compliance. Therefore, there was delay in representing the matter. It appears that the said delay of 500 days was also condoned by the court below and against which, there was no revision petition filed or challenge made by the petitioners herein. Thus, the application filed for restoration of I.A.No.1090 of 2006 was taken up for hearing and after considering all the facts and circumstances, the court below has allowed the application on payment of cost of Rs.1,000/- to the second respondent therein and also Rs.1,000/- to respondents 6 to 10 therein. The said order of the court below is challenged before this court. 3. I have heard the learned counsel appearing for the petitioners as well as the learned counsel appearing for the respondents. 4. Learned counsel appearing for the petitioners submits that the plaintiffs have allowed the suit to be dismissed for default and even the application filed to restore the suit was also dismissed by the court below for default. Therefore, the learned counsel submits that the respondents viz., the plaintiffs are not at all interested in proceeding with the suit and they want only to drag on proceedings, by filing applications one after another. No doubt, the suit is dismissed for default on 01.11.2006. However, the fact remains that the application to restore is filed in time and there is no delay. It is true that the said application was also dismissed for default on 31.07.2007. No doubt, the suit is dismissed for default on 01.11.2006. However, the fact remains that the application to restore is filed in time and there is no delay. It is true that the said application was also dismissed for default on 31.07.2007. Here again, the respondents herein as plaintiffs filed application for restoration of I.A.No.1090 of 2006 on 27.08.2007 i.e. within 30 days. Therefore, there is no delay in filing the application before the court below both to restore the suit as well as to restore the application. 5. Considering all these facts and circumstances and also in order to give a chance to the plaintiffs to contest the suit on merits, the court below has allowed the application by imposing costs. I find no illegality or irregularity in the order passed by the court below, in view of the fact that the petitioners are suitably compensated by imposing costs of Rs.2,000/-. 6. It is seen that the suit is of the year 2004 and the same is dragged all these years without attaining any finality. It is now represented by the learned counsel for the petitioners that the pleadings have been completed in the suit. 7. Considering the fact that the pleadings have already been completed and the suit is of the year 2004 and the parties are also related as brothers and sisters, it is better to give finality of the suit at the earliest point of time. Accordingly, the civil revision petition is dismissed with a direction to the court below to take up the restoration application in I.A.No.1090 of 2006 and dispose of the same within a period of 15 days from the date of receipt of a copy of this order. If the said application filed by the plaintiffs is allowed, the court below is directed to dispose of the suit within a period of three months thereafter. No costs. The connected miscellaneous petition is also dismissed.