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2017 DIGILAW 2888 (MAD)

S. Sudalai v. Ahamed Nachi

2017-08-28

T.RAVINDRAN

body2017
ORDER : The suit laid by the petitioner/plaintiff was dismissed for non-prosecution. To restore the suit, an application had been preferred by the petitioner. Inasmuch as there is a delay of 471 days in filing the said application, it is found that the petitioner has preferred an application in I.A.No.322 of 2004 to condone the said delay. The reason given by the petitioner/plaintiff for the condonation of the said delay is that he had already engaged Densingh as his Advocate and subsequently, he has entrusted his case to another Advocate Ramakrishnan and on the other hand, when the case was posted for trial, according to him, only the name of the earlier Advocate was mentioned and not the name of the new Advocate engaged by him and therefore, he was not aware of the listing of the suit on that particular date and also the dismissal of the suit consequently and therefore, according to him, the delay had occurred. 2. The above said application of the petitioner has been stoutly resisted by the respondents/defendants contending that the reasons given by the petitioner for the condonation of the delay do not constitute sufficient cause as contemplated under law and further, the said reasons are not true and acceptable and according to them, only with a view to cause hardship and troubles to them, the petitioner has laid the false suit and accordingly, unable to succeed in the suit, left the same to go for dismissal and therefore, the present application preferred by the petitioner is nothing but only to delay the proceedings endlessly and hence, the application is liable to be dismissed. 3. It is found that in support of the petitioner's case, P.W.1 was examined and Ex.P1 was marked and on the side of the respondents, no oral and documentary evidence was adduced. 4. The Court below, on a consideration of the rival contentions put forth by the respective parties and the materials placed before it, found that the cause adduced by the petitioner for the condonation of the delay does not constitute sufficient cause and further, the cause pleaded by the petitioner also found to be false and un-sustainable, consequently dismissed the application preferred by the petitioner. Impugning the same, the present civil revision petition has been preferred. 5. Impugning the same, the present civil revision petition has been preferred. 5. Inasmuch as the petitioner has in fact blamed the Court for not printing the name of the new Advocate engaged by him in the list when the matter had been listed for trial, it is found that the Court below, in order to determine the controversies involved in the matter, endeavoured to peruse the concerned record in detail. On a verification of the same, it is found by the Court below that till the suit was dismissed for default, the Advocate on record for the petitioner was only Densingh and not Ramakrishnan, therefore, it is found that the reason given by the petitioner that inasmuch as the name of the Advocate Ramakrishnan is not mentioned in the list when the matter had been listed for trial, he was not aware of the listing of the case and consequently, the dismissal of the suit was found to be unacceptable. 6. As rightly determined by the Court below, if really the petitioner had engaged Ramakrishnan as his new Advocate, the normal course that would have been followed by him is to obtain the bundle from the earlier Advocate and entrust the same to the new Advocate. However, it is not made clear as to whether the petitioner has followed the above said course to sustain his case. It has not been mentioned in the application or during the course of evidence that as to when the petitioner had obtained the bundle from the earlier Advocate and handed over the same to the new Advocate. This aspect coupled with the fact that when only Densingh was the Advocate on record till the dismissal of the suit, as found by the Trial Court, would go to show that the case of the petitioner that he has entrusted his case to the Advocate Ramakrishnan prior to the dismissal of the suit as such cannot be believed and accepted. 7. If really, as pleaded by the petitioner, he had entrusted the case bundle to the Advocate Ramakrishnan, the new Advocate would have endeavoured to file vakalat on behalf of the petitioner and the same would have been taken on file by the Court and the name of the new Advocate would have been reflected in the list when the matter had been listed for trial. On the other hand, it is found that as seen from the records by the Court below, the new Advocate has not filed any change of vakalat for the petitioner and accordingly, it is found that his name had not been brought on record officially and accordingly, since the earlier Advocate Densingh was on record and his vakalat has not been revoked in the manner known to law, it is found that only the name of the Advocate Densingh was reflected in the list when the matter had been listed for trial. This fact also would go to show that the case of the petitioner that he had engaged the new Advocate prior to the dismissal of the suit is only to buttress his case one way or the other and not otherwise. 8. As rightly found by the Court below, the reason given by the petitioner not found to be acceptable, to the knowledge of the petitioner, it is found that he has given a new version during the course of evidence for the condonation of the delay. Now, according to the petitioner, as seen from his testimony, the new Advocate engaged by him, even if the said case is taken to be true for the sake of arguments, according to the petitioner, has written letters to him about the stage of the case. If that be so, the petitioner would be aware of the posting of the case on a particular date and if he is really interested in prosecuting the matter, it could be seen that as rightly argued by the learned counsel for the respondents, he would have taken steps to be present on the date when the matter was listed before the Court along with his new Advocate and proceeded with the matter. On the other hand, despite the above plea, now set out by the petitioner, it is found that he has not shown any interest to appear before the Court when the matter was listed for trial. 9. However, to obviate the weakness of the above petitioner's version, it is found that the petitioner has also pleaded during the course of evidence that the letters sent by the Advocate had not been received by him as he was out of station. 9. However, to obviate the weakness of the above petitioner's version, it is found that the petitioner has also pleaded during the course of evidence that the letters sent by the Advocate had not been received by him as he was out of station. Further, he would fairly state that only on account of the fact that he was not in station for a long period, he was unable to prosecute the case. Therefore, from the evidence adduced by the petitioner, it is found that the cat has come out from the bag and the only reason, according to the petitioner as deposed by him, is that as he was not in station for a long period and therefore, he was unable to proceed with the matter. However, to establish the above said fact also no material whatsoever has been placed by the petitioner. This would only go to show that the petitioner has been improving his case one after the other and this conduct of the petitioner would only go to show that as the reason given by the petitioner for the condonation of the delay is false, it is found that he has been improving his case by giving new reasons one after the other, however, unable to establish his case even prima facie to the satisfaction of the Court and therefore, it is found that the Court below has rightly determined the cause pleaded by the petitioner for the condonation of the delay as false and accordingly, the petitioner is unable to substantiate the same with acceptable materials. 10. As seen from the discussions made above, the petitioner's endeavour is only to blame the Court for the condonation of the delay and thereby tried to succeed in his petition. However, when the facts disclosed as stated above would go to show that the entire blame for the non-prosecution of the matter is only on the petitioner concerned, the contention of the learned counsel for the respondents that the conduct of the petitioner in blaming the Court for the dismissal of the suit for non-prosecution as such should not be encouraged and appreciated by the Court. The above argument seems acceptable. 11. The above argument seems acceptable. 11. In the light of the above position, it is found that the Court below has correctly found that the reasons given by the petitioner do not constitute sufficient cause for the condonation of the delay as contemplated under law, on the other hand, rightly held that the reasons given by the petitioner for the condonation of the delay are false and accordingly, the petitioner is unable to establish the same. In such view of the matter, as rightly determined by the Court below, the petitioner is not entitled to be shown any indulgence by the Court, particularly, when he had chosen to blame the Court for the dismissal of the suit for non-prosecution. Whereas, the responsibility for the dismissal of the suit on account of the non- prosecution squarely rests only on the petitioner. 12. In the light of the above position, the decision relied upon by the learned counsel for the petitioner reported in (2000) 9 SCC 94 [State of Bihar and others vs. Kameshwar Prasad Singh and another], in my considered opinion, do not apply to the facts and circumstances of the case. Be that as it may, the principles of law outlined in the above said decision are also taken into consideration and followed as applicable to the facts and circumstances of the case at hand. 13. In view of the foregoing reasons, it is found that the Court below has rightly dismissed the application preferred by the petitioner and in such view of the matter, the impugned order does not call for any interference from this Court and resultantly, the civil revision petition is dismissed with costs.