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K.Varadarajan v. K.Mani - CIVIL REVISION PETITION(PD) NO.637 OF 2002  RD-TN 876 (10 October 2003)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HONOURABLE MR.JUSTICSE V.KANAGARAJ.
CIVIL REVISION PETITION(PD) NO.637 OF 2002
C.M.P.NO.5261 OF 2002
K.Varadarajan .. Petitioner -Vs-
5. The Commissioner,
Salem District. .. Respondents Civil Revision Petitions filed under Section 115 of C.P.C. as stated therein.
For Petitioner .. Mr.P.Mani.
For Respondent .. No appearance
:O R D E R
The above Civil Revision Petition has been filed against the fair and decretal order dated 6.11.2000 made in I.A.No.852 of 2000 in O.S. No.679 of 1990 by the Court of District Munsif, Mettur thereby dismissing the application filed by the petitioner under Section 5 of the Limitation Act, praying to condone the delay of 282 days in filing the application to set aside the decree and to restore the suit which is dismissed for default.
2. The case of the petitioner/plaintiff is that he filed the suit in O.S.No.679 of 1990 on the file of the Court of District Munsif, Mettur for a permanent injunction restraining the defendants from in any way unlawfully putting up any further construction of latrine or any other construction in the suit property, directing the defendants to vacate the suit property and hand over possession of the same to the plaintiff and if they refuse to do so, permitting him to take delivery of possession through the process of court and for costs and the same was posted to 8.3.1993 for enquiry; that on that day since he failed to appear before the Court, the suit was dismissed for default; that at the time when the suit was posted for enquiry, he was bedridden and was undergoing treatment at Government Hospital, Bhavani for hernia operation and hence he was not able to travel and attend the court to prosecute the suit proceeding; that only after recovering from the illness, he came to know about the dismissal of the suit for default on 8.3.1999; that he filed an application to condone the delay of 282 days in filing the petition to set aside the default dismissal order and to restore the suit; that the delay is neither wilful nor wanton and hence he would pray for the relief extracted supra.
3. In the counter filed by the respondents, they would submit that it is false to state that since the petitioner was undergoing treatment for hernia operation he was not able to attend the court on 8.3.199 9; that the petitioner with an intention to drag on the suit proceedings has come forward to file the above application and hence they would pray to dismiss the above application.
4. The learned District Munsif on the basis of the pleadings of the parties would frame his own point for determination, further conducting enquiry, in which the petitioner himself would examine as P.W.1 and would mark one document viz., medical certificate as Ex.P1. The learned District Munsif in consideration of the facts and circumstances of the case would ultimately dismiss the application filed by the petitioner on ground that he has not proved that he was admitted in the hospital on 8.3.1999. It is only testifying the validity of the said fair and decretal order, the petitioner has come forward to file this Civil Revision Petition on such grounds as brought forth in the grounds of revision.
5. Today, when the above Civil Revision Petition was taken up for consideration in the presence of the learned counsel for the petitioner, no representation was offered on the part of the 5th respondent, in spite of service and since all the other respondents 1 to 4 have entered appearance the above Civil Revision Petition is to be heard and decided.
6. In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for the petitioner with no representation on behalf of the respondents, what could be assessed from the facts and circumstances of the case is that the order of the trial court in dismissing the petition to condone the delay of 282 days in filing the application to set aside the decree and to restore the suit which is dismissed for default is nothing but denial of opportunity to the petitioner to prosecute the suit itself wherein the substantial rights of the petitioner are at stake and the petitioner should not be punished with denial of opportunity to prosecute the suit as it has been held time and again by the Hon'ble Apex Court, however, he must be punished only with heavy costs since is not able to convince the court with any justifiable reason for condonation of delay in filing the application to set aside the decree and to restore the suit which is dismissed for default. With this above principle established, this court is of the view that one more opportunity could be given for the petitioner to be prompt in acting in such manner as required by law and expected by the Courts and hence the following order: In result,
(i) the above Civil Revision Petition is allowed on condition that the petitioner pays a costs of a sum of Rs.1000/- (Rupees One thousand only) to the counsel for the respondents on or before 31.10.2003; (ii) the Fair and Decretal order dated 6.11.2000 made in I.A.No.85 2 of 2000 in O.S.No.679 of 1990 by the Court of District Munsif, Mettur stands set aside subject to the petitioner complying with the above condition; (iii) consequently, C.M.P.No.5261 OF 2002 is closed. Index:Yes
The District Munsif, Mettur.
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