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2013 DIGILAW 2325 (MAD)

S. Shanmugham v. K. Athmanathan

2013-07-04

K.RAVICHANDRA BAABU

body2013
Judgment :- 1. The petitioner is the plaintiff in O.S.No.373 of 1998 on the file of the Sub-Court, Villupuram seeking to set aside the sale deed alleged to have been executed by the plaintiff on 26.3.1994, and was ordered to be registered on 24.3.1995. 2. The said suit came to be dismissed on 30.11.2005. Aggrieved against the same, the petitioner filed an appeal on the file of the Principal District Court, Villupuram in A.S.No.81 of 2009. The said appeal came to be dismissed for default on 15.2.2010. The petitioner filed I.A.No.30 of 2010 on 15.3.2010 praying for restoration of the appeal, under Order 41 Rule 19 C.P.C., and the same was dismissed by the court below on 4.7.2011. Aggrieved against the same, the present civil revision petition is filed before this Court. 3. Heard the learned counsel appearing for the petitioner as well as respondent. 4. Learned counsel appearing for the petitioner, submitted that the court below has dismissed the application only by taking note of the past conduct of petitioner and not by giving any finding on the reasons set out by the petitioner in the affidavit filed in support of the application for his absence on 15.2.2010. 5. Per contra, learned counsel appearing for the respondent, submitted that the petitioner has filed the application only to drag on the proceedings without giving any reason. He also submitted that on an earlier occasion, he did not appear before the court and the appeal was dismissed on 6.10.2009, and subsequently, it was restored. Therefore, he submitted that the application was rightly rejected by the court below and no interference is called for. 6. The affidavit filed in support of the application in A.No.30 of 2011, would show that the petitioner had stated that he was bed ridden due to jaundice and therefore, he could not attend the court on 15.2.2010. Though the respondent herein filed counter and denied the said reason as false, the court below has not given any finding on the said reasons given by the petitioner. On the other hand, the lower court has taken note of the past conduct of the petitioner alone to reject the application. 7. In my considered view, the court below ought to have given finding based on the averments contained in the affidavit filed in support of the application. On the other hand, the lower court has taken note of the past conduct of the petitioner alone to reject the application. 7. In my considered view, the court below ought to have given finding based on the averments contained in the affidavit filed in support of the application. But, at the same time, the court below is not precluded from taking note of past conduct of the petitioner. W hen the rejection order was passed based on the past conduct of the petitioner alone and without there being any finding on the reasons contained in the affidavit filed in support of the application, I am of the view that the petitioner must be given an opportunity to contest the appeal on merits, especially when he has filed the application within time. However, the court below noted that the petitioner has allowed the appeal to be dismissed for default on 6.10.2009, and the same was subsequently restored. Once again, the appeal was dismissed on 15.12.2010. Aggrieved by the same, the present application is filed by the petitioner. 8. Thus, the attitude of the petitioner cannot be left without imposing any cost on him. Therefore, the order passed by the court below, is set aside and the application filed by the petitioner in I.A.No.30 of 2011, is allowed subject to condition that the petitioner should pay a sum of Rs.2500/-as cost to the respondent through his counsel appearing before this court, within a period of two weeks from today i.e., 4.7.2013. Post the matter after two weeks on 18.7.2013, for reporting compliance. 9. If the cost is paid within the time stipulated, the court below will take up the appeal in A.S.No.81 of 2009 and dispose of the same on merits within two months from the date of receipt of copy of this order. This civil revision is accordingly, allowed. No costs.