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2013 DIGILAW 510 (MAD)

Kumarasamy Gounder v. V. Palanisamy

2013-01-23

T.MATHIVANAN

body2013
JUDGMENT 1. This memorandum of civil revision is directed against the fair and decretal Order dated 05.06.2007 and made in I.A.No.92 of 2006 in A.S.No.166 of 2003, on the file of the learned Principal District Judge, Namakkal. 2. It appears from the records that the first revision petitioner and the deceased second revision petitioner have filed a suit in O.S.No.505 of 2001 against the respondents herein on the file of the learned District Munsif Court, Namakkal to declare that the respondents/defendants have no right to lay underneath pipe line in the suit property and also for the consequential relief of permanent injunction. 3. That suit was contested by the respondents/defendants and ultimately it was dismissed on 04.02.2003. 4. Challenging the Judgment and decree dated 04.02.2003, the revision petitioners herein have preferred an appeal in A.S.No.166 of 2003, on the file of the learned Principal District Judge, Namakkal. 5. As it revealed from the affidavit filed in support of the interlocutory application in I.A.No.92 of 2006 in A.S.No.166 of 2003, when the appeal stood posted for arguments on 07.12.2005, it was dismissed for default as the revision petitioners were not ready to argue the case. 6. It is also revealed that the Order of dismissal of appeal was let known to the revision petitioners only on 03.03.2006 by their counsel. Therefore, there was a delay of 73 days in filing the application to set aside the Order of dismissal. Hence, they were constrained to file the interlocutory application in I.A.No.92 of 2006 to condone the delay of 73 days. 7. That interlocutory application in I.A.No.92 of 2006 was resisted by the respondents saying that the reasons assigned by the revision petitioners/appellants were not sufficient to condone the delay. After hearing both sides, the learned First Appellate Judge has dismissed the application on 06.06.2007 with a finding that the averments of the affidavit filed in support of the application did not reflect any bonafide. 8. Being aggrieved by the Order of dismissal dated 06.06.2007, the revision petitioners being the appellants have preferred this memorandum of civil revision. 9. After hearing both sides, the learned First Appellate Judge has dismissed the application on 06.06.2007 with a finding that the averments of the affidavit filed in support of the application did not reflect any bonafide. 8. Being aggrieved by the Order of dismissal dated 06.06.2007, the revision petitioners being the appellants have preferred this memorandum of civil revision. 9. Learned counsel appearing for the petitioners has submitted that when the appeal was posted for hearing on 03.11.2005, the first revision petitioner's son was informed that the appeal might have been transferred to Fast Track Court and thereafter he was under the impression that the appeal would be called before the Fast Track Court and in the later point of time i.e., on 03.03.2006, they were informed that the appeal was called by the learned Principal District Judge, Namakkal on 07.12.2005 and dismissed for want of appearance of the appellants to argue the case. 10. In this connection, the learned counsel appearing for the petitioners would submit that without considering the reasons adduced by the revision petitioners, the learned Principal District Judge, Namakkal had proceeded to dismiss the application on 07.12.2005 and the impugned Order itself appears to be perverse and therefore liable to be set aside. 11. The learned counsel appearing for the respondents has submitted that as rightly observed by the learned Principal District Judge in the impugned Order dated 07.12.2005, the revision petitioners had not shown sufficient cause to condone the delay of 73 days in filing the application to set aside the Order of dismissal dated 07.12.2005 and therefore the impugned Order does not require any interference of this Court. 12. He has also submitted that even if it is presumed that the son of the first revision petitioner was informed that the appeal would have been transferred to the file of Fast Track Court, he could have very well contacted his counsel and therefore the very conduct of the revision petitioners would go to show that the acquiescence on their part in conducting the appeal caused them to lose the suit before the trial Court and hence he has urged this Court to dismiss the revision petition. 13. 13. By way of reply, the learned counsel appearing for the petitioners has submitted that the delay is meager one and one more chance might be given to the revision petitioners to put forth their case before the First Appellate Court as they are having good chance of success. 14. The learned counsel appearing for the respondents has submitted that the suit itself appears to have been filed in the year 2001 and the appeal was filed in the year 2003. Almost ten years have passed and even if the appeal is ordered to be restored, no purpose would be served. 15. Having regard to the related facts and circumstances and on considering the submissions made by both the learned counsels, this Court is of view that in the interests of justice, this revision petition may be allowed on payment of costs of Rs.1,500/-. 16. Accordingly, this revision petition is allowed on payment of costs of Rs.1,500/-and the fair and decretal Order dated 05.06.2007 and made in I.A.No.92 of 2006 in A.S.No.166 of 2003, on the file of the learned Principal District Judge, Namakkal is set aside and the application in I.A.No.92 of 2006 is allowed and the delay of 73 days in filing the application to set aside the Order of dismissal dated 07.12.2005 is condoned. Further, the revision petitioners are directed to deposit the costs of Rs.1,500/- to the credit of the appeal in A.S.No.166 of 2003, on the file of the First Appellate Court, within a period of ten days from the date of receipt of a copy of this Order. On such deposit being made, the respondents are directed to receive the same directly from the Court. Consequently, connected miscellaneous petition is closed.