Madras High Court
Saradha vs Kathirvelu on 11 February, 2019
Author: J.Nisha Banu
Bench: J.Nisha Banu
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 11.02.2019
CORAM :
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
C.R.P.(MD)No.1160 of 2006 (NPD)
1.Saradha
2.Mahalakshmi ... Petitioners/
Petitioners / Plaintiffs
Vs.
1.Kathirvelu
2.Rajeswari
3.Uma Maheswari
4.Santhi
5.Ramesh
6.Balasubramanian
7.Baskaran
8.Palanivelu
9.Kanjanamala
10.Kamala .. Respondents /
Respondents / Defendants
(No relief is claimed against the respondents 2 to 4 and they were set
ex parte before the lower Court)
(This petition is dismissed in respect of the 10th respondent, as per the
order of this Court dated 11.01.2019 made in C.R.P.(MD).No.1160 of
2006)
PRAYER: Petition filed under Section 115 of C.P.C. against the fair and
decreetal order dated 07.02.2006, made in I.A.No.265 of 2004 in
O.S.No.142 of 1992 by the learned Principal District Munsif,
Kumbakonam.
For petitioners : Mr.V.K.Vijayaraghavan
For respondents 1, 5 to 9 : Mr.Lakshmi Shankar,
for Mr.T.V.Sivakumar
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ORDER
This civil revision petition has been filed by the petitioners / plaintiffs as against the dismissal of the petition filed under Section 5 of Limitation Act.
2. It is seen that the petitioners / plaintiffs have filed the suit in O.S.No.142 of 1992 for partition. Due to non appearance of the plaintiffs, the Court below has dismissed the suit for default. In order to file a petition seeking restoration of the suit, there occurred a delay of 239 days. For condoning the delay of 239 days in filing a restoration petition, the petitioners / plaintiffs filed I.A.No.265 of 2004. But, the Court below has dismissed the said petition holding that the petitioners have not properly explained the delay of 239 days. Aggrieved by the said order, the petitioners have filed this civil revision petition.
3. The learned counsel appearing for the petitioners submitted that on the date of dismissal of the suit, the first petitioner was suffered by jaundice and the second petitioner was at Chennai and the second petitioner was suffered by paralysis and therefore, the petitioners could not appear before the Court below and the delay of 239 days had occurred in filing the restoration petition. Further, the petitioners were aged about 70 years at the time of filing the petition for condonation of delay. But, the Court below, without considering the same, has http://www.judis.nic.in 3 dismissed the condone delay petition. The right of the petitioners is affected in view of the dismissal of the delay petition. Thus, he prayed to allow this civil revision petition and to condone the delay.
4. The learned counsel appearing for the respondents submitted that the petitioners did not explain the delay properly and therefore, the Court below has dismissed the petition and the same need not be interfered with. Thus, he prayed to dismiss this revision petition.
5. Heard the learned counsel for the petitioners and the learned counsel appearing for the respondents 1, 5 to 9 and perused the records carefully.
6. Admittedly, the suit was dismissed for default due to non appearance of the parties. The reasons assigned by the petitioners for condonation of delay of 239 days in the affidavit filed in support of the petition before the Court below are that the first petitioner was initially suffered by jaundice and thereafter, wheezing and fever, and as per the advise of the doctor, she was taking rest in the house and that the second petitioner was living at Chennai and she was not informed to appear before the Court. The first petitioner was examined as PW1. She has stated in her evidence that she took native treatment and that the second petitioner has been suffering from paralysis attack for two years.
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7. The Court below has rejected the relief sought for by the petitioners mainly holding that the first petitioner made statements contradictory to the averments made in the petition. The said contradictions are: (a) Though the first petitioner produced a medical certificate from the allopathy doctor in order to prove her ailment, she has stated in her evidence that she took native treatment. (b) The first petitioner has further stated that the second petitioner was suffered by paralysis attack and therefore, she could not appear before the Court, whereas in the petition it has been stated that she was not informed to appear before the Court below.
8. Admittedly, the petitioners were aged about 70 years at the time of filing the petition for condonation of delay. The Court below has stated that the first petitioner has produced a medical certificate in order to prove that she was suffered by jaundice and wheezing problems through allopathy doctor. It cannot be disputed that the first petitioner has every right to take allopathy treatment as well as native treatment. Merely because the first petitioner has stated that she took native treatment, it cannot be concluded that she has not taken allopathy treatment. Further, it has not been specifically stated by the first petitioner that she took native treatment alone. So far as the second petitioner is concerned, it is stated in the petition that she was not informed to appear before the Court, but in addition to that, the first http://www.judis.nic.in 5 petitioner has stated in her evidence that the second petitioner has been suffering from paralysis attack for the past two years and therefore, it cannot be stated as a contradictory statement. Further, It has not been disputed by the respondents that the second petitioner was not suffered by paralysis attack. The delay has been explained by the petitioners to some extent.
9. Considering the age of the petitioners, length of the delay and also considering the valuable rights of the parties involved in this case, the Court below could have liberally considered and allowed the petition for condonation of delay with certain terms. But, the Court below has failed to do so. Hence, this Court is inclined to allow this petition with a term. Accordingly, this Civil Revision Petition is allowed and the order passed by the Court below is set aside and the delay of 239 days is condoned subjection to the payment of cost of Rs.1,000/- (Rupees one thousand only) to the Legal Aid Services Committee, attached to this Bench, within a period of two weeks from the date of receipt of a copy of this order, failing which this revision petition shall stand dismissed automatically and the order passed by the Court below shall stand restored. No costs.
Internet : Yes/No 11.02.2019
Index : Yes/No
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J.NISHA BANU, J.
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To
1.The Principal District Munsif,
Kumbakonam.
2.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
C.R.P.(MD)No.1160 of 2006 (PD)
11.02.2019
http://www.judis.nic.in