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2014 DIGILAW 4295 (MAD)

Rasi Technitex Pvt. Ltd. v. United India Insurance Co. Ltd.

2014-11-17

K.KALYANASUNDARAM

body2014
ORDER This Civil Revision Petition is directed against the order passed in I.A.No.100 of 2012 in O.S.No.47 of 2007 on the file of II Additional District Court, Salem. 2. The petitioner is the plaintiff in the suit in O.S.No.47 of 2007 which was filed for recovery of money of Rs.38,08,174/alongwith interest. The respondent received summon and also filed their written statement on 25.09.2007. However, the suit was dismissed for non-prosecution on 28.08.2009. The plaintiff filed an application in I.A.No.682 of 2011 to restore the suit. The learned Trial Judge allowed the application on payment of cost of Rs.1,000/- to be paid to the respondent on or before 14.03.2012 and posted the case on 15.03.2012. Due to non-compliance of the conditional order, the application was dismissed on 15.03.2012. 3. The petitioner filed I.A.No.100 of 2012 under Section 149 and 151 of CPC seeking enlargement of time for payment of costs. The learned Judge dismissed the application holding that the court has become functus officio. Aggrieved by the said order, the present revision is filed. 4. The learned counsel for the petitioner has relied upon a judgment in Gowri Ammal v. Murugan and others reported in 2006 (3) CTC 418 and contends that the order is exfacie illegal. 5. Per contra, the learned counsel appearing for the 1st respondent/insurance company submitted that the suit was dismissed for non-prosecution on 28.08.2009 and the petitioner was negligent in paying the cost to restore the suit. It is further submitted that the respondent cannot be made liable to pay the interest for the default period. 6. This Court, in the case of Gowri Ammal v. Murugan and Others, cited supra held that under Section 148 & 149 of CPC, the court which has passed the conditional order does not become functus officio and Section 148 confers ample discretionary powers regarding enlargement of time and Section 151 can be invoked to pass necessary orders, in the interest of justice. 7. In the light of the judgment of this court cited above, the impugned order dated 27.06.2012 made in I.A.No.100 of 2012 in O.S.No.47 of 2007 cannot be sustained and the same is set aside. In the result, the revision petition is allowed. However, the petitioner shall pay a cost of Rs.10,000/- to the 1st respondent, within a period of six weeks from today. In the result, the revision petition is allowed. However, the petitioner shall pay a cost of Rs.10,000/- to the 1st respondent, within a period of six weeks from today. On such compliance, the trial court shall restore the suit and dispose of the same in accordance with law. It is made clear that the petitioner shall not be entitled for interest for the default period. No costs.