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2017 DIGILAW 1986 (MAD)

S. Shanmuga Kani v. M. S. Ramakrishnan

2017-07-12

T.RAVINDRAN

body2017
ORDER : 1. The suit has been laid by the respondents/plaintiffs for permanent injunction. As seen from the records, it is found that the deceased first defendant had suffered an ex parte decree in the said suit on 14.11.2000. To set aside the same, the deceased first defendant took out an application in I.A.No.1183 of 2000 and as seen from the records, it is found that the above said application has been filed by the deceased first defendant for the third time to set aside the ex parte decree passed against him in the suit. 2. Be that as it may, based on the endorsements made by the learned counsel for the respective parties and also considering the fact that the above said application had been filed to set aside the ex parte decree by the deceased first defendant for the third time, the Lower Court had allowed the above said application on condition i.e., on payment of cost of Rs.700/- to the respondents/plaintiffs on or before 27.08.2001. The matter had been directed to be posted on 28.08.2001. 3. As seen from the records, it is found that pending the above said application, the first defendant had died and accordingly, it is found that a Memo had been filed intimating his death to the Court on 28.08.2001 and the same having been recorded, the Court had directed to take appropriate steps and accordingly, it is also found that the legal representatives of the deceased first defendant i.e., civil revision petitioners had taken steps to implead themselves as petitioners in the above said application and thereafter, on steps being taken to amend the petition, it is found that the amended petition copy had also been filed and finally when the matter stood adjourned on 06.11.2002, inasmuch as there had been no representation for both sides on 06.11.2002 and the petitioners having been called absent and remaining absent, it is found that the Court dismissed the above said application. 4. In order to restore the above said application, it is found that the revision petitioners had preferred an application and inasmuch as there is a delay of 794 days in preferring the said application, it is found that the civil revision petitioners i.e., legal representatives of the deceased first defendant preferred an application in I.A.No.232 of 2005. 4. In order to restore the above said application, it is found that the revision petitioners had preferred an application and inasmuch as there is a delay of 794 days in preferring the said application, it is found that the civil revision petitioners i.e., legal representatives of the deceased first defendant preferred an application in I.A.No.232 of 2005. The Lower Court having rejected the said application and consequently, aggrieved over the same, the present civil revision petition has been preferred. 5. The reasons given by the petitioners for condoning the delay of 794 days is that though they had paid the costs of Rs.700/- as directed by the Court below in I.A.No.1183 of 2000, the Court below had erroneously dismissed the above said application on the footing that the costs has not been paid and further according to them, inasmuch as their Advocate had been convicted in a murder case and as they had no opportunity to contact him and thereafter, after ascertaining his address and when they verified the records, according to them, they had come to know about the dismissal of I.A.No.1183 of 2000 on 06.11.2002 and therefore, according to them, the delay should be condoned. 6. Per contra, it is the case of the respondents/plaintiffs that the application in I.A.No.1183 of 2002 had been dismissed for default and the petitioners despite having knowledge about the same had not evinced any interest to initiate any steps to restore the said application and on the other hand, they had preferred the above said application to restore the same with a delay of 794 days and inasmuch as the petitioners had not adduced convincing and sound reasons to condone the delay, the application filed by the revision petitioners to condone the delay deserves rejection. 7. As adverted above, the reasons given by the revision petitioners for the condonation of delay of 794 days are that inasmuch as their counsel had been convicted in a murder case, they had no chance to meet him and thereafter, they have ascertained his address with certain amount of difficulties and thereafter, when they verified the records, they came to know about the dismissal of I.A.No.1183 of 2000 on 06.11.2002. However, when the above said reasons given by the revision petitioners for the condonation of the huge delay have been vehemently denied and challenged by the respondents/plaintiffs, it is for the revision petitioners to establish them at least by prima facie proof that they have convincing reasons for the condonation of delay. On the other hand, as rightly found by the Lower Court, there is no necessary averments as regards to in which case their counsel had been convicted, on what date their counsel had been convicted and what steps they had taken to contact their counsel, on what date they had contacted their counsel and when they verified the records etc. There is absolutely no evidence on the side of the revision petitioners for the same. Accordingly, it is found that the Lower Court had held that inasmuch as the revision petitioners had not given acceptable and reliable reason for the condonation of delay, rightly found that the revision petitioners are unable to substantiate the same with acceptable materials. As rightly found by the conduct of the revision petitioners from the inception of the suit i.e., considering the conduct of the deceased first defendant in remaining ex parte for three times and the conduct of the revision petitioners in not prosecuting the application in I.A.No.1183 of 2000 would only go to show that the revision petitioners are hell bent upon to drag on the proceedings endlessly so as to cause irreparable loss or hardship to the respondents/plaintiffs. 8. The learned counsel for the revision petitioners has not able to point out any material to disturb the well considered findings of the Lower Court in rejecting the application preferred by the revision petitioners for the condonation of the delay. However, in support of his contention, the learned counsel relied upon the decision of the Apex Court reported in (1987) 2 SCC 107 (Collector, Land Acquisition, Anantnag and Another vs. MST.Katul and Others. The principles of law outlined in the above said decision are taken into consideration and followed as applicable to the facts and circumstances of the case at hand. 9. Still the learned counsel for the revision petitioners contended that the revision petitioners having paid the costs of Rs.700/- as ordered by the Court below in I.A.No.1183 of 2000, the Court had erred in dismissing the said application on the footing that the costs has not been paid. 9. Still the learned counsel for the revision petitioners contended that the revision petitioners having paid the costs of Rs.700/- as ordered by the Court below in I.A.No.1183 of 2000, the Court had erred in dismissing the said application on the footing that the costs has not been paid. However, the above said contention does not merit acceptance. As seen from the notes paper, it is found that the above said matter had been adjourned for filing amended petition and also for costs on several occasions. If the revision petitioners had been diligent in prosecuting the above said application, nothing prevented them from informing the Court below that the costs ordered by the Court below had already been paid and accordingly, they would be entitled to prosecute the above said application further. On the other hand, inasmuch as there was no representation on both sides on 06.11.2002, it is found that the Court below had no other option, but to dismiss the said petition for default. If really the revision petitioners were serious in prosecuting the said application, immediately on coming to know about the same, they would have taken steps to restore the said application and contested the main suit on merits. On the other hand, as discussed above, the revision petitioners had taken their own time to restore the above said application and accordingly, there occurred a delay of 794 days in preferring the said restoration application. Further, the petitioners having not adduced any acceptable and convincing reason for the condonation of delay and despite resistance to the application to condone the delay by the other side, the revision petitioners have not evinced any interest to adduce any evidence, it is found that the Lower Court has rightly held that the revision petitioners are not serious and interested in prosecuting the said application and accordingly, dismissed the above said application filed by the revision petitioners for the condonation of delay. 10. There is absolutely no reason to interfere with the fair and decreetal order of the Lower Court passed in I.A.No.232 of 2005. Accordingly, the same are confirmed. 11. Resultantly, the civil revision petition is dismissed. No costs.