Madras High Court
Thangaraju vs Ramalingam on 3 August, 2021
C.R.P.(NPD)No.4153 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.08.2021
CORAM :
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
C.R.P.(NPD)No.4153 of 2018 &
C.M.P.No.22904 of 2018
Thangaraju .... Petitioner
Vs.
Ramalingam .... Respondent
PRAYER: Civil Revision Case filed under Article 227 of Constitution of
India, against the Fair and Decreetal order of Subordinate Judge's Court at
Ariyalur, dated 03.10.2018 in I.A.No.80 of 2013 in A.S.No.40 of 2009.
For Petitioner : Mr.P.Valliappan
For Respondent : Mr.Usharaman
ORDER
This Civil Revision Case arises out of the order passed by the Sub
Court, Ariyalur in I.A.No.80 of 2013 in A.S.No.42 of 2009.
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C.R.P.(NPD)No.4153 of 2018
2. The brief facts of the case are that a suit in O.S.No.295 of 2007
was initiated by the respondents for declaration, permanent injunction and
for mandatory injunction. The suit was decreed, vide Judgment and Decree
dated 26.06.2009. Aggrieved over the same, the petitioner/defendant
preferred an Appeal before the Sub Court, Ariyalur and the same was
numbered as A.S.No.40 of 2009. The Appeal came to be dismissed for non
prosecution on 19.01.2012. I.A.No.80 of 2013 was filed to condone the delay
of 520 days in restoring the Appeal. The learned Sub Judge, Ariyalur,
dismissed the petition. Challenging the same, the present Revision has been
filed.
3. Mr.P.Valliappan, learned counsel for the petitioner would
submit that the Appeal was dismissed for non prosecution due to the act of
his counsel and considering the prayer sought for in the suit, the petitioner
can be given one more opportunity to pursue the appeal and he is ready to
pay reasonable cost for the inconvenience caused to the respondent.
4. Per contra Mr.Usharaman, learned counsel for the respondent
would argue that the Appeal was filed in the year 2009 with an intention to
prolong the litigation. He further added that the petitioner herein filed an
Interlocutory Application No.81 of 2010 for appointment of Advocate
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C.R.P.(NPD)No.4153 of 2018
Commissioner in the Appeal, but he allowed the petition to be dismissed for
default. Though the appellate Court has posted the appeal between
25.01.2010 and 19.01.2012 for final hearing, the counsel for the appellant
was not ready and hence, there is no illegality in the order impugned in this
Revision.
5. Heard the rival submissions and perused the materials
available on record.
6. In the instant case, it is an admitted fact that O.S.No.295 of
2007 was filed by the respondent for declaration of title, mandatory
injunction and for consequential permanent injunction, and the suit was
decreed by the trial Court. Assailing the same, the petitioner preferred an
Appeal before the Sub Court, Ariyalur. It is equally not disputed that even
2010 itself, the appeal was ready for hearing, however, at the instance of
the learned counsel appearing for the petitioner/appellant, the appeal was
being adjourned and eventually it was dismissed for non prosecution. The
condone delay petition was also rejected taking note of the conduct of the
counsel, who represented the petitioner before the appellate Court.
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C.R.P.(NPD)No.4153 of 2018
7. Considering the relief sought for in the suit and the submission
of the learned counsel for the petitioner, this Court is of the considered
opinion that the petitioner is to be provided one more opportunity to
pursue the Appeal, however on payment of cost of a sum of Rs.20,000/-
(Rupees Twenty Thousand only). The amount shall be paid to the learned
counsel for the respondent, within a period of three weeks, i.e., on
or before 24.08.2021. It is represented by the learned counsel for the
petitioner that an application has already been filed to restore the Appeal.
8. For the forgoing reasons, the order impugned in this revision is
set aside. The Sub Court, Ariyalur, is hereby directed to restore the Appeal
and dispose of the same, on merits and in accordance with law, within a
period of eight weeks therefrom. Accordingly, this Civil Revision Case is
allowed. There is no order as to costs. Consequently, connected
miscellaneous petition is closed.
9. List the matter for reporting compliance on 25.08.2021.
03.08.2021
Index : Yes.
Internet : Yes.
Speaking order / Non Speaking Order
rns
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C.R.P.(NPD)No.4153 of 2018
To
The Sub Court,
Ariyalur.
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C.R.P.(NPD)No.4153 of 2018
K.KALYANASUNDARAM, J.
rns
C.R.P.(NPD)No.4153 of 2018 &
C.M.P.No.22904 of 2018
03.08.2021
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