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2013 DIGILAW 3015 (MAD)

K. Baskaran v. Perumal

2013-08-23

K.RAVICHANDRA BAABU

body2013
Judgment : 1. The petitioner is the plaintiff in O.S.No. 406 of 2004 on the file of the District Munsif Court, Tambaram. He filed the said suit against the respondents herein for permanent injunction restraining them from interfering with his peaceful possession and enjoyment of the suit property. 2. The said suit was dismissed for default on 13.3.2002 due to non appearance of the petitioner. For restoration of the said suit, with a delay of 564 days, the petitioner filed an application under Section 5 of the Limitation Act seeking to condone the said delay. It is stated by the petitioner in the supporting affidavit before the Court below that he was put to embarrassment by his in-laws through a police complaint given against him before the police as if he was demanding dowry. Thus, it is stated by him that he was put under threat of arrest at any point of time and consequently, he could not lead a normal life and contact his counsel to get along with the trial of the case. Only when the first respondent's sons had broken five pillars embedded in the earth of the suit property on the boundary line on 23.11.2007, he came to know about the dismissal of the suit for default. Thus, he filed the application to condone the delay of 564 days. The said application was resisted by the respondents. The Court below rejected the application by observing that the petitioner has not filed any document to show that a complaint or F.I.R. has been filed against him and only due to the same, he was unable to appear on the said date of dismissal of the suit. Apart from the said observation, the Court below also taken note of the admission made by the petitioner that the first respondent's sons had broken the pillars embedded in the earth of the suit property on 23.11.2007 and thus, it is pointed out by the Court that the suit for permanent injunction cannot be maintained any more and the petitioner has to only file a suit for mandatory injunction and recovery of possession if he is legally entitled as per law. Thus, by considering all these facts and circumstances, the Court has rejected the application and aggrieved against the same, the present civil revision petition is filed by this Court. 3. Mr. Thus, by considering all these facts and circumstances, the Court has rejected the application and aggrieved against the same, the present civil revision petition is filed by this Court. 3. Mr. L. Chandrakumar, learned counsel appearing for the petitioner would submit that the petitioner was reasonably prevented from appearing before the Court only due to the reasons stated in the accompanying affidavit. Even though the petitioner could not mark any document before the Court below, the complaint given on 15.2.2007 by one Radhiga, who is the wife of the petitioner, which is placed in the typed set of papers, would prove that the petitioner had suffered with certain amount of mental agony and therefore, he was not in a position to appear before the Court below. It is also submitted by the learned counsel for the petitioner that after the dismissal of the suit filed by the petitioner, the respondents have also filed separate suit for permanent injunction in respect of the very same property. 4. Notice was served on the respondents. None appears for them. Heard the learned counsel for the petitioner. 5. The petitioner has come forward before the Court by filing an application under Section 5 of the Limitation Act seeking to condone the delay of 564 days in filing the application to restore the suit. Though the petitioner has given some reasons in the affidavit, he has not proved the same before the Court by marking any document. It is also seen that he was not examined himself as a witness. Therefore, the Court below is justified in holding that in the absence of any supporting materials, mere contention raised by the petitioner, cannot be taken into consideration for condoning the delay. However, as it is admitted by the petitioner in the affidavit that the first respondent's sons had broken the pillars on 23.11.2007, certainly, it is open to him to seek appropriate relief by way of filing separate suit and therefore, the dismissal of the present suit, which was filed only for permanent injunction would not stand in his way of filing another suit either for mandatory injunction or for other reliefs as observed by the Court below. Thus, while dismissing the civil revision petition, this Court makes it clear that the dismissal of the suit in O.S.No. 406 of 2004 will not disentitle the petitioner from filing other suit by seeking other reliefs as available under Law. Consequently, M.P.No. 1 of 2013 is dismissed. No costs.