Madras High Court

Ramu vs Shantha on 15 December, 2021

                                                                               C.R.P.(NPD).No.1219 of 2019


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                       DATED : 15.12.2021

                                                             CORAM

                                        THE HON'BLE MR.JUSTICE S.S.SUNDAR

                                                 C.R.P.(NPD).No.1219 of 2019

                     B.Rangan (Died)

                     1. Ramu
                     2. Alamelu
                     3. R.Kokila
                     4. K.Shanthi
                     5. N.Geetha
                     6. R.Nithya                                                   ... Petitioners


                                                               Vs.


                     1. Shantha
                        2. Selvi                                                               ...
                           Respondents
                        3.
                                  Civil Revision Petition is filed under Article 227 of the Constitution
                     of India, to set aside the order dated 26.11.2018 passed by the II
                     Additional District Munsif, Salem in I.A.No.639 of 2017 in O.S.No.741
                     of 2009.


                                                For Petitioners : Mr.J.Sudhakaran
                                                For R1          : No Appearance (Served)
                                                For R2          : Mr.R.Nalliappan

https://www.mhc.tn.gov.in/judis
                     1/9
                                                                              C.R.P.(NPD).No.1219 of 2019


                                                            ORDER

The Civil Revision Petition is directed against the order of the

Learned 2nd Additional District Munsif, Salem in I.A.No.639 of 2017 in

O.S.No.741 of 2009 dismissing the petition filed by the revision

petitioners to condone the delay of 1319 days in filing the restoration

application.

2. The revision petitioners filed a suit in O.S.No.741 of 2009 before

the 2nd Additional District Munsif Court, Salem for declaration of their

title and for consequential permanent injunction. The further prayer in the

suit is for mandatory injunction to remove the walls constructed in a

portion of the suit property.

3. It is admitted that the suit was dismissed for default on

25.11.2013. Hence, a restoration petition was filed by the revision

petitioners. However, there was a delay of 1319 days in filing the said

petition. IA.No.659/2017 in OS.No.741/2009 is therefore filed to condone

the delay of 1319 days.

4. It is stated by the revision petitioners before the Lower Court

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C.R.P.(NPD).No.1219 of 2019

that the fact that the suit which was dismissed for default was not

brought to the notice of the plaintiffs. It is admitted that the counsel who

was engaged by the plaintiffs died in 2016.

5. It is a specific case of the revision petitioners that the previous

counsel who was bedridden for a long time had not guided them properly.

It is further stated that they contacted the junior of his counsel after the

death of their counsel and came to know that their suit was dismissed for

default on 25.11.2013 and the papers were handed over to them in the

second week of June 2017. In the said circumstances, it is stated by the

petitioners that the petitioners were unable to get information about the

hearings and they came to know only when he happened to see the junior

of his counsel engaged before the Lower Court about the dismissal of the

suit for non prosecution.

6. The said petition was contested by the respondents. The Lower

Court dismissed the petition after holding that the petitioners did not

prosecute the case with due diligence. With regard to explanation offered

by the revision petitioners, the Lower Court found that the counsel

engaged by the plaintiffs / revision petitioners had reported no https://www.mhc.tn.gov.in/judis

C.R.P.(NPD).No.1219 of 2019

instructions. The Lower Court also found that a notice was issued to the

petitioners for their appearance on 25.11.2013. It was only thereafter, the

Lower Court dismissed the suit for default.

7. Since the revision petitioners have suppressed the said facts, the

Trial Court was prompted to dismiss the petition by holding that the

reasons stated by the revision petitioners are not sufficient.

8. It is the specific case of the revision petitioners that they were

unable to get information periodically in view of the old age and ailment

of their previous counsel. Though it is stated that the Court issued notice

to the revision petitioners, when their counsel reports no instructions,

there is no proof whether the said notice was issued to the revision

petitioners. Even assuming that the notice issued to the petitioners was

signed and received by the revision petitioners, the Court has to be more

accommodative in cases like this.

9. The fact that the petitioners' previous counsel was suffering from

ailment due to his old age is not in dispute. This Court is unable to reject

the explanation wholly either on the ground of suppression of fact or on https://www.mhc.tn.gov.in/judis

C.R.P.(NPD).No.1219 of 2019

the ground that the explanation offered is unacceptable. The petitioners

have not blamed anyone as it was observed by the Lower Court while

dismissing the petition filed by the petitioners to condone the delay. The

suit was filed by the plaintiffs / revision petitioners for declaration that

they are the owners of the suit property and for consequential injunction

apart from mandatory injunction to remove the construction put up by the

respondents. The suit which was filed to establish the petitioners'

substantial right need not be thrown out without a trial on merits. The

plaintiffs did not appear on one day and filed a petition to restore the suit

long after the order of dismissal.

10. When there is plausible explanation for the delay, the Court is

expected to give an opportunity to the litigant either to prosecute or to

defend the case, so that, there will be adjudication on merits. Though the

petitioners have failed to convince the Lower Court, the inordinate delay

in filing the petition, this Court is able to see that the petitioners have at

least some reasons for the delay. The Lower Court dismissed the

application without considering the precarious position to which the

plaintiffs/revision petitioners are put to. If there is some explanation,

acceptance of explanation shall be the rule unless there is wilful https://www.mhc.tn.gov.in/judis

C.R.P.(NPD).No.1219 of 2019

negligence and the other side is put to irreparable loss or prejudice.

11. The primary intention of the Court should be as far as possible

to adjudicate the issues between the parties on merits to advance

substantial justice. The Trial Court has failed to exercise its discretion

ignoring the irresistible consequences and other facts. Merely because

the reasons stated by the revision petitioners are not sufficient, it cannot

result in dismissal of their application thereby depriving the valuable

rights of the petitioners. It is true that the respondents will be put to some

inconvenience because of the delay.

12. The learned counsel appearing for the revision petitioners relied

upon the Judgment of this Court in “R.M.Arunachalam Vs.

PL.R.Arunachalam Chettiar and others“, wherein, it has been held as

follows :

“6. In the application of this Court, the reasons assigned on the part of the petitioner though not very strong, seem to be genuine and true and the same are acceptable for the purpose of condoning the delay that had occurred in filing the petition to restore the suit. Moreover, the valuable rights of the petitioner are involved in the suit https://www.mhc.tn.gov.in/judis

C.R.P.(NPD).No.1219 of 2019

which he himself filed for declaration and injunction regarding the suit properties and such of the rights of the petitioner cannot be compromised on account of the delay in his coming forward to restore the suit dismissed for default.

7. The upper forum of law have more often held that even if the delay is not properly explained, the petitioner should not be punished with denial of opportunity to prosecute the case, wherein, his valuable rights are involved and when once such petitioners are not allowed to participate in the further proceedings by dismissing the condonation applications filed to condone the delay on certain technicalities, the other side whether has any genuine rights or not, wins the entire case and the petitioner loses all his rights in the suit and to avoid such calamities, the petitioners could only be punished with costs and not with denial of opportunity to prosecute the case wherein his valuable rights are involved.

8. Therefore, it is a case of that nature wherein, the petitioner, though left his suit for dismissal on account of default, now, having come forward to show genuine interests, should be given an opportunity to participate in the further trial proceedings in the suit, wherein the lower court will be in a position to decide the valuable rights of parties on merits.”

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C.R.P.(NPD).No.1219 of 2019

13. In the facts and circumstances of the case, this Court is of the

view that the petitioners deserve an opportunity to prosecute their case on

merits. This Court is also of the view that the delay could have been

avoided by the revision petitioners if due diligence is shown by the

petitioners at the appropriate stage. This Court is inclined to allow this

Civil Revision Petition by imposing cost.

14. Accordingly, this Civil Revision Petition is allowed on

condition that the revision petitioners shall pay costs of Rs.5,000/-

[Rupees Five Thousand only] to the respondents within a period of four

weeks from the date of receipt of a copy of this order.