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2019 DIGILAW 8 (MAD)

Vallivel v. Muthulakshmi

2019-01-02

T.RAVINDRAN

body2019
ORDER : The civil revision petition is directed against the fair order and decreetal orders, dated 03.09.2009, passed in I.A.No.1195 of 2008 in O.S.No.6 of 2002, on the file of the Principal District Munsif Court, Valliyoor. 2. The revision petitioners are the plaintiffs in O.S.No.6 of 2002 and the abovesaid suit had been laid by them for the reliefs of declaration and possession. The abovesaid suit has been resisted by the respondents/defendants by filing the written statement. It is seen that the abovesaid suit has been listed for trial on 04.11.2004 and inasmuch as the revision petitioners have failed to appear in the Court, the suit had come to be dismissed for non-prosecution and to restore the suit, the revision petitioners have come forward with an application under Order IX Rule 9 of the Code of Civil Procedure. However, inasmuch as there occurred a delay of 1373 days in filing the abovesaid application, the revision petitioners have preferred I.A. No. 1195 of 2008 for the condonation of the abovesaid delay. Now, according to the revision petitioners, the first revision petitioner had been to Kerala for taking treatment for heart ailment and diabetics and accordingly, not aware of the listing of the case for trial on 04.11.2004 and as he was only conducting the case, the other revision petitioners are not aware of the facts and conduct of the case and on account of his old age and loss of memory and ailments, the first revision petitioner was unable to contact his counsel and know the stage of the case and only when the respondents approached to demolish the buildings, the revision petitioners came to know about the dismissal of the suit on 04.11.2004 and accordingly, contended that the delay had occurred in filing the application and hence, prayed for the condonation of the delay. 3. The abovesaid application of the revision petitioners had been resisted by the respondents contending that the alleged cause of illness, the treatment said to have been taken by the first revision petitioner in Kerala etc., are all false and projected only for the purpose of the application and when with reference to the same, no proof has been placed and according to them, for the delay of 4 ½ years, no proper cause has been adduced and hence, the application is liable to be dismissed. 4. 4. The Court below, on a consideration of the rival contentions putforth by the respective parties, finding that the revision petitioners have failed to establish the alleged cause projected by them and also not properly explained the inordinate and huge delay, dismissed the application. Aggrieved over the same, the present civil revision petition has been laid. 5. The suit laid by the revision petitioners had been dismissed for non-prosecution. Seeking to restore the same, they have preferred the application under the Code of Civil Procedure. However, as there occurred a delay of 1373 days in preferring the abovesaid application, to condone the said delay, they have come forward with the abovesaid application. The only reason given by the revision petitioners for the delay is that the first revision petitioner, who had been looking after the case, had been taking treatment in Kerala and thereby, unable to contact his counsel and know the progress of the case and only, later came to know about the dismissal of the suit on 04.11.2004, when the respondents attempted to demolish their building and accordingly, sought for the condonation of the delay. The abovesaid cause projected by the revision petitioners for the delay is being totally repudiated by the respondents contending that the same is false and projected only for the purpose the application. 6. Despite the resistance putforth by the respondents with reference to the alleged cause of the revision petitioners for the condonation of the delay, still the revision petitioners have not endeavoured to place any material worth acceptance for sustaining their cause. Furthermore, as rightly putforth, no particulars as regards the alleged illness of the first revision petitioner; the treatment said to have been taken by him in Kerala; the period of the treatment with whom, he had taken treatment; when he had recovered; when he had contacted the counsel etc., absolutely there is no material and as abovenoted, to sustain the same, the revision petitioners have not placed any material for the consideration of the Court. In addition to that, the revision petitioners have also not endeavoured to examine themselves in support of their case. In addition to that, the revision petitioners have also not endeavoured to examine themselves in support of their case. In such view of the matter, the Court below is found to have fully justified in disbelieving the first revision petitioner's case and considered the huge and inordinate delay noting that if the abovesaid delay is condoned, without any proper cause, the respondents would be put to irreparable loss and hardship and accordingly, dismissed the application. 7. Considering the reasons given by the Court below and when the revision petitioners are found to have not placed any material to sustain their case and the alleged cause also not established to be a sufficient cause as contemplated under Section 5 of the Limitation Act and accordingly, the revision petitioners are unable to establish the same one way or the other, it is found that the Court below is fully justified in rejecting the revision petitioners' case. No interference is called for with reference to the same. 8. The revision petitioners' counsel, in support of his contentions, placed reliance upon the decisions in Kuppayee Ammal vs. Athiappa Gounder, reported in 2008 (1) TNCJ 408 (Mad), M/s.T.V.Sundaram Iyengar and Sons Ltd., vs. S.Raghunathan, reported in 2008 (1) TNCJ 389 (Mad) and K.M.Subramani vs. Pattammal and others, reported in 2008 (1) TNCJ 462 (Mad). The respondents' counsel, in support of his contentions placed reliance upon the decision in Balwant Singh (Dead) vs. Jagdish Singh and others, reported in AIR 2010 SC 3043 . The principles of law outlined in the abovecited decisions are taken into consideration and followed as applicable to the case at hand. 9. For the reasons aforestated, the civil revision petition is dismissed with costs. Consequently, connected miscellaneous petition is closed.