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KAIVALYANATHAN (DECEASED) versus VELLADURAI

High Court of Madras

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Kaivalyanathan (deceased) v. Velladurai - C.R.P.(NPD)(MD)No.665 of 2006 [2007] RD-TN 1553 (21 April 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 21/04/2007

CORAM :

THE HONOURABLE MR.JUSTICE S.RAJESWARAN

C.R.P.(NPD)(MD)No.665 of 2006

Kaivalyanathan (deceased)

1.K.Muthulakshmi

2.P.K.Selvanathan

3.P.K.Swamynathan

4.P.K.Ananthanayaki ... Petitioners vs.

1.Velladurai

2.Shunmugavel

3.Padmanaban ... Respondents

Civil Revision Petition filed under Sec.115 of C.P.C., against the order dated 28.4.2006 and made in I.A.No.349/2005 in un-numbered A.S.No. /2005 on the file of the Principal Sub Judge, Tirunelveli. For Petitioners :M/s.Santharam Natarajan

For Respondents :M/s.Meenakshi Sundaram, for R2 No appearance for R1 & R3

:ORDER



This Civil Revision Petition has been filed under Sec.115 of C.P.C., against the order dated 28.4.2006 and made in I.A.No.349/2005 in un-numbered A.S.No. /2005 on the file of the Principal Sub Judge, Tirunelveli.

2.The petitioners in I.A.No.349/2005, in unnumbered Appeal Suit, are the revision petitioners herein. I.A.No.349/2005 was filed under Sec.5 of the Limitation Act to condone the delay of 855 days in filing the appeal against the judgment and decree dated 5.3.2003 made in O.S.No.93/2000 which was originally filed by the husband of the 1st revision petitioner herein. By order dated 28.4.2006, I.A.No.349/2005 was dismissed by the lower appellate court and aggrieved by the same, the above Civil Revision Petition has been filed under Sec.115 of the Code of Civil Procedure.

3.It is the case of the revision petitioners that they have unearthed new facts after the dismissal of I.A.No.349/2005 and these new facts will clearly establish the fraud and collusion of the learned counsel who appeared for the deceased husband before the trial court and to that effect an affidavit has been filed along with the new documents.

4.Though elaborate arguments were advanced by both the learned counsel, by citing a number of authorities, I am of the considered view that the matter has to be remitted back to the lower appellate court for fresh consideration in the light of the fresh affidavit and new set of documents filed by the revision petitioners. There are certainly serious allegations of fraud and collusion made out in the affidavit and levelled against the persons concerned and if proved, it will have serious repercussions and the petitioners should not be allowed to suffer for the fraud, if proved, committed on them.

5.Hence I am setting aside the order of the lower appellate court dated 28.4.2006 made in I.A.No.349/2005 and remanding the entire matter for fresh consideration.

6.Both the parties are permitted to let in evidence, both oral and documentary and the lower appellate court is also directed to conduct a detailed enquiry with regard to the allegations made in the affidavit filed by the revision petitioners before this court and also on the basis of the documents filed in the Civil Revision Petition. The court below is directed to take all follow-up action including passing orders on merits in the condone delay petition and taking necessary action, if the fraud alleged is proved, within three months from the date of receipt of this order.

7.In the result, this Civil Revision Petition is allowed and remanded for fresh consideration.




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