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2013 DIGILAW 2872 (MAD)

Periammal v. A. Mani

2013-08-06

K.RAVICHANDRA BAABU

body2013
Judgment : 1. This Civil Revision Petition is filed against the order dated 02.02.2012 made in I.A.No.228 of 2012 in O.S.No.396 of 2006 on the file of the First Additional District Munsif Court, Salem. 2. The petitioners are the defendants in the said suit filed by the respondent herein for recovery of possession of the suit property. The said suit came to be dismissed for default on 6.7.2007. For restoring the said suit, the respondent/plaintiff filed an application under Order IX, Rule 9 of the Civil Procedure Code. However, as there were some discrepancies, the said application was returned by the Court below for effecting compliance. The plaintiff re-presented the said application only on 19.09.2011 with a delay. Only to condone the said delay, he filed I.A.No.228 of 2012 under Sections 148 and 151 of the Civil Procedure Code seeking to condone the delay in re-presenting the application under Order IX, Rule 9 of the Civil Procedure Code. The Court below allowed the application by order dated 02.02.2012. Hence, the present Civil Revision Petition is filed by the defendants. 3. Heard the learned counsel appearing on either side. 4. The grievance of the petitioners is that the Court below condoned the delay in re-presenting the application without even ordering notice to the defendants, especially, when the delay is about 5 years. It is further stated that the respondent/plaintiff has not disclosed about the period of delay in the affidavit filed in support of the condone delay petition. 5. Per contra, the learned counsel for the respondent submitted that it is only an application seeking to condone the delay in re-presenting the papers and, therefore, there is no necessity for issuing notice to the other side. 6. I perused the affidavit filed by the respondent in support of the application in I.A.No.228 of 2012 before the Court below and also the order passed therein. As rightly contended by the learned counsel for the petitioners, the respondent has not stated as to what is the actual number of days being the delay in re-presenting the application. But, one thing is clear that the affidavit itself came to be filed on 19.9.2011. Therefore, it can be safely concluded that the application came to be filed in the month of September, 2011. If that is so, as rightly contended by the learned counsel for the petitioners, the delay would be nearly about 5 years. But, one thing is clear that the affidavit itself came to be filed on 19.9.2011. Therefore, it can be safely concluded that the application came to be filed in the month of September, 2011. If that is so, as rightly contended by the learned counsel for the petitioners, the delay would be nearly about 5 years. If that is the factual position, the Court below ought to have issued notice to the other side before considering the said application on merits. Unfortunately, when the order passed by the Court below is perused, it would show that it is totally a non-speaking order without discussing any of the facts and circumstances of the case warranting condonation of such delay. Therefore, I am of the view that the order passed by the Court below cannot be sustained and the matter needs to be remitted back to the Court below for considering the application filed by the respondent afresh after affording due opportunity to the petitioners herein. 7. Accordingly, the order of the Court below passed in I.A.No.228 of 2012 dated 02.02.2012 is set aside and the Interlocutory Application is remitted back to the Court below for passing fresh orders on merits and in accordance with law within 30 days from the date of receipt of a copy of this order. It is needless to say that the Court below will give due opportunity of hearing to the petitioners as well as the respondent. The Civil Revision Petition is allowed. The connected Miscellaneous Petition is closed. No costs.