Madras High Court
M. Somasundaram vs M. Kasthuri on 29 April, 2021
C.R.P(MD).No. 441 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.04.2021
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
C.R.P(MD).No.441 of 2021 and
CMP(MD).No. 2387 of 2021
M. Somasundaram : Petitioner
Vs.
M. Kasthuri : Respondent
PRAYER:- Civil Revision Petition filed under Article 227 of the
Constitution of India against the dismissal of CMA.No. 9 of 2018 dated
11.11.2020 on the file of the I Additional District Judge, Madurai against
the order passed in I.A.No. 82 of 2017 in A.S.No. 207 of 2009, dated
21.07.2017, on the file of the Sub Court, Madurai.
For petitioner : Mr. S. Mahesh Babu
ORDER
This revision is directed against the order passed in
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C.R.P(MD).No. 441 of 2021
C.M.A.No.9 of 2018, dated 11.11.2020 on the file of the I Additional
District Court, Madurai confirming the order passed in I.A.No.82 of 2017
in A.S.No.207 of 2009, dated 21.07.2017 on the file of the I Additional
Subordinate Court, Madurai (Melur Camp).
2. The revision petitioner is the defendant and the respondent /
plaintiff has filed the above suit in O.S.No.250 of 2006 for recovery of
possession and for recovery of arrears of rent and for damages. The
learned District Munsif, Melur, after trial has passed the Judgment dated
28.07.2009 directing the revision petitioner / defendant to hand over the
possession of the suit property to the respondent / plaintiff, within a period
of two months from the date of decree and to pay a sum of Rs.26,385/-
towards arrears of rent and also to pay Rs.5,100/- towards rent from
September 2006 to November 2006 with interest. Aggrieved by the
Judgment, the revision petitioner / defendant has preferred an appeal in
A.S.No. 207 of 2009 on the file of the Sub Court, Melur at Madurai and
that appeal was dismissed for non prosecution on 12.08.2016. The
revision petitioner has then filed an application in I.A.No. 82 of 2017
under Order 41 Rule 19 CPC to restore the appeal, which was dismissed
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C.R.P(MD).No. 441 of 2021
for default on 12.08.2016 and the learned Subordinate Judge, after
conducting the enquiry, has passed an order dated 21.07.2017 dismissing
the restoration petition. Aggrieved by the said dismissal, the revision
petitioner has preferred an appeal in CMA.No. 9 of 2018 on the file of the
learned I Additional District Court, Madurai. Upon perusing the materials
and hearing the arguments of both sides, the learned I Additional District
Judge, has passed the impugned order dated 11.11.2020 dismissing the
appeal. Not satisfied with the dismissal of the appeal, the revision
petitioner has filed the present revision petition.
3. The petitioner in his affidavit filed in support of the petition
in I.A.No. 82 of 2017 has alleged that he was suffering from viral fever
and acute knee pain from 10.08.2016 and he had to take complete bed rest
as per the advice of the Medical Officer attending him, that therefore, he
could not attend the Court on 12.08.2016, that his failure to attend the
Court on that day is neither wilful nor wanton and that he will be put to
irreparable loss and hardship, if the appeal is not restored.
4. The learned Subordinate Judge in his order has specifically
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C.R.P(MD).No. 441 of 2021
observed that though the petitioner has alleged that he was suffering from
viral fever and acute knee pain from 10.08.2106, he has not produced any
material or evidence to prove the same and that his counsel alone had to
appear and argue the appeal and as such, the presence of the petitioner was
not at all necessary. The learned Appellate Judge, in his order, has
observed that the petitioner has not only accused the other side but also
the Court in the memorandum of appeal for the pendency of the appeal for
the past seven years, that there is no bonafide attitude on the part of the
petitioner in conducting the case, that though he has stated in the Appeal
Memorandum that the Advocates in Tamil Nadu and Pondicherry were
Boycotting the Courts during the relevant period, he has not pleaded the
same in his affidavit and that the intention of the petitioner is only to keep
the appeal pending for ever. Admittedly, the respondent / landlord has
filed the suit in the year 2006 and obtained decree for possession on
28.07.2009, that the appeal in A.S.No. 207 of 2009 was filed in the year
2009, and the same has been pending for more than 7 years and that
thereafter, the Appeal Suit was ordered to be dismissed for default.
5. According to the revision petitioner, the respondent has
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C.R.P(MD).No. 441 of 2021
laid the execution petition for executing the decree dated 28.07.2009 and
that the Court has already ordered for delivery and that therefore, stay has
to be granted till the disposal of the revision.
6. As rightly observed by the learned Subordinate Judge and
by the learned Additional District Judge, the petitioner has not proved that
he was suffering from Viral fever and acute Knee pain from 10.08.2016
and that is why he could not attend the Court on 12.08.2016. Though the
petitioner has produced the Medial Certificate dated 24.08.2016 through
Additional typed set of papers, he has not shown as to why the same was
not exhibited before the Sub Court. Moreover, the petitioner has not
canvassed any other reason or explanation for the non appearance of their
Advocate and to advance the arguments in the appeal. The respondent /
plaintiff though obtained the decree as early as on 28.07.2009, is still
unable to realize the fruits of the decree.
7. Considering the above, as rightly observed by the Courts
below, the petitioner has been attempting to protract the proceedings and
hence, the decision of the learned I Additional District Judge, Madurai
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C.R.P(MD).No. 441 of 2021
confirming the order of the learned Subordinate Judge, Melur at Madurai,
dismissing the restoration application cannot be found fault with and
hence, this Court is not inclined to admit the revision.
8. In the result, the Civil Revision Petition is dismissed. No
costs. Consequently, the connected Miscellaneous Petition is closed.
29.04.2021
Index : Yes : No
Internet : Yes : No
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https://www.mhc.tn.gov.in/judis/
C.R.P(MD).No. 441 of 2021
To
1. I Additional District Judge, Madurai.
2. The Sub Court, Madurai.
https://www.mhc.tn.gov.in/judis/
C.R.P(MD).No. 441 of 2021
K.MURALI SHANKAR,J.
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C.R.P(MD).No.441 of 2021 and
CMP(MD).No. 2387 of 2021
29.04.2021
https://www.mhc.tn.gov.in/judis/
