Madras High Court
K.Dhamayandhi vs N.Sekar on 9 February, 2021
CRP.PD.No.2450 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.02.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.PD.No.2450 of 2017
and
CMP.No.11556 of 2017
K.Dhamayandhi ... Petitioner
Vs.
1. N.Sekar
2. Sathyavani
3. Poovathal
4. M.Mohanasundaram ... Respondents
PRAYER: The Civil Revision Petition is filed under Article 227 of the
Constitution of India, praying to set aside the fair and final order dated
16.02.2017 made in I.A.No.884 of 2012 in I.A.No.185 of 2011 in
O.S.No.19 of 2008 as unsustainable, by allowing the revision petition and
consequently dismiss the said condone delay application.
For Petitioner : Mr.V.P.Sengottuvel
For Respondents : Mr.R.Bhranidharan (for R1 to R3)
: Notice Served (for R4)
ORDER
This Civil Revision Petition is arising out of the fair and decretal
order passed in I.A.No.884 of 2012 in I.A.No.185 of 2011 in O.S.No.19 of
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CRP.PD.No.2450 of 2017
2008 dated 16.02.2017 on the file of the Subordinate Judge, Tiruchengode,
thereby, allowing the petition to condone the delay in filing the application
to restore I.A.No.185 of 2011.
2. The petitioner is second defendant in the suit filed by the
respondents for partition and permanent injunction, in respect of the suit
property. After filing the written statement, the suit was dismissed for
default for the reason, the respondents did not appear before the trial Court.
The respondents filed a petition to restore the suit with a petition to condone
the delay in I.A.No.67 of 2011. In I.A.No.67 of 2011, which was allowed on
14.03.2011. Thereafter, the restoration petition to restore the main suit was
numbered and the respondents failed to serve notice to the petitioner herein.
Therefore, the said application was dismissed for default. The respondents
again filed a petition to restore the main suit with a delay of 317 days. The
condone delay petition was filed, on the ground that the respondents
counsel's sister as well as his father died and as such, their counsel could
not be able to file a petition to restore the restoration petition in time. It was
allowed on condition that the respondents shall pay a sum of Rs.2,000/- as
costs.
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CRP.PD.No.2450 of 2017
3. The learned counsel for the petitioner submitted that the reasons
stated in the condone delay petition is false and they did not even properly
mention with the date of death of their counsel's father. He died on
16.02.2011, whereas they mentioned as 17.02.2011. Further, the
respondents failed to explain the delay with sufficient cause. In support of
his contentions, he relied upon the judgments reported in 2012 (3) SCC 563
(Postmaster General -vs- Living Media India Limited) and 2010 (8) SCC
685 (Balwant Singh -vs- Jagdish Singh).
4. On a perusal of the records, it reveals that the petitioner is the
second defendant in the suit filed by the respondents for partition and
permanent injunction. The first defendant is none other than is own brother.
However, the first defendant sold out the entire property in favour of the
petitioner herein. Therefore, the petitioner has vehemently contested these
applications. The main suit was dismissed for default. The respondents filed
a petition to restore the main suit with the condone delay petition in
I.A.No.67 of 2011, which was allowed on 14.03.2011. While filing the
restoration petition there was delay and as such, they filed a petition to
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CRP.PD.No.2450 of 2017
condone the delay along with the restoration petition.
5. In the said application notice was ordered and on receipt of the
counter filed by the petitioner herein it was allowed. When the condone
delay petition was allowed, the restoration petition restoring the suit is
automatic, even then the Court below dismissed the same for the reason that
no notice was served on the opposite parties. However, the said application
was also dismissed for default only on the ground that no notice was served.
Therefore, the Court below rightly allowed the petition to condone the delay
to restore the main suit on the payment of Rs.2,000/- costs. The learned
counsel for the respondents also submitted that the costs of Rs.2,000/- was
already paid and the same was duly received by the petitioner herein.
Therefore, this Court finds no irregularity or infirmity in the order passed by
the Court below.
6. Accordingly, this Civil Revision Petition is dismissed.
Consequently, the connected Miscellaneous Petition is closed. No costs.
09.02.2021
Speaking/Non-speaking order
Index : Yes/No
https://www.mhc.tn.gov.in/judis/
CRP.PD.No.2450 of 2017
Internet : Yes/No
kv
G.K.ILANTHIRAIYAN,J.
Kv
To
The Subordinate Judge, Tiruchengode.
CRP.PD.No.2450 of 2017
09.02.2021
https://www.mhc.tn.gov.in/judis/
