Shanmuga Mudaliar vs Janakiraman
2021 Latest Caselaw 4259 Mad

                                                                        C.R.P.(NPD)No.2641 of 2015

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 18.02.2021

                                                       CORAM

                                   THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN

                                             C.R.P.(NPD) No.2641 of 2015
                                                and M.P.No.1 of 2015

                     Shanmuga Mudaliar                                         ... Petitioner

                                                          Vs.
                     1. Janakiraman
                     2. Deivanai
                     3. Parvathiammal
                     4. Sitha                                                  ... Respondents

                     Prayer :- Civil Revision Petition is filed under Section 115 of C.P.C., to set
                     aside the fair and decreetal order dated 11.03.2015 passed in I.A.No.49 of
                     2013 in A.S.No.29 of 2011 on the file of the Sub Court at Cheyyar,
                     Thiruvannamalai District.
                                          For Petitioner  : Mr.G.Senthilkumar
                                          For Respondents
                                                For R1    : Mr.P.Mani
                                                R2 & R4   : Dismissed vide Court
                                                            Order dated 29.08.2019
                                                For R3    : Notice served




                     Page 1 of 6


https://www.mhc.tn.gov.in/judis/
                                                                         C.R.P.(NPD)No.2641 of 2015

                                                       ORDER

This Civil Revision Petition has been filed as against the fair

and decreetal order dated 11.03.2015 passed by the learned Subordinate

Judge, Cheyyar, Thiruvannamalai District, in I.A.No.49 of 2013 in

A.S.No.29 of 2011, thereby allowing the petition filed by the respondents 1

& 2 to condone the delay of 431 days in filing the petition to restore the

appeal suit.

2. The petitioner is the plaintiff and the respondents are the

defendants in the suit filed by the petitioner for declaration and recovery of

possession and injunction in respect of the suit schedule property. The suit

was decreed by the judgment and decree dated 09.03.2010. Aggrieved by

the same the respondents 1 & 2 herein filed appeal suit in A.S.No.29 of

2011. While pending the appeal, the respondents failed to appear before the

appellate Court as such, the appeal was dismissed as default. Thereafter,

they filed application to restore the appeal suit in I.A.No.16 of 2010 and the

same was allowed on condition that the respondents 1&2 shall pay a cost of

Rs.500/-. Since the respondents 1 & 2 did not comply the said conditional

https://www.mhc.tn.gov.in/judis/ C.R.P.(NPD)No.2641 of 2015

order, the petition was dismissed. Again the respondents 1 & 2 filed petition

in I.A.No.60 of 2011 and the same was allowed and the appeal was restored.

But the respondents 1 & 2 were not instructed their counsel to argue the

case and the appeal suit is dismissed for default on 27.03.2012. In fact, the

petitioner filed execution petition and the delivery of possession of the suit

property was effected. After examining P.W.1 & P.W.2 and also R.W.1, the

Court below allowed petition by stating that the respondents may be given

one more opportunity to avail their appeal remedy. Aggrieved by the same,

the petitioner filed this present Civil Revision Petition.

3. On perusal of the evidence of P.W.1 and P.W.2, it revealed that

the first respondent herein is an aged person and he fell ill and he was

admitted in hospital for taking treatment. He was affected by Jaundice and

bed ridden. The said fact was corroborated by P.W.2. Therefore, the

appellate Court rightly allowed the petition and this Court finds no illegality

or irregularity in the order passed by the Court below. However, the

appellate Court while allowing the petition to restore the appeal suit on

second time, did not impose any cost. Considering the same, the restoration

https://www.mhc.tn.gov.in/judis/ C.R.P.(NPD)No.2641 of 2015

petition is allowed on condition that the respondents 1 & 2 are directed to

pay a sum of Rs.5,000/- (Rupees Five thousand only) jointly to the

petitioner within a period of two weeks from the date of receipt of copy of

this Order, failing which, the restoration of appeal suit shall stand

automatically dismissed.

4. With the above direction, this Civil Revision Petition stands

dismissed. There shall be no order as to costs. Consequently, connected

miscellaneous petition is closed.

18.02.2021

Internet : Yes Index : Yes/No Speaking order/Non-speaking order

rts

https://www.mhc.tn.gov.in/judis/ C.R.P.(NPD)No.2641 of 2015

To

1. The Subordinate Judge, Cheyyar, Thiruvannamalai District.

2. The Section Officer, V.R. Section, Madras High Court, Chennai.

https://www.mhc.tn.gov.in/judis/ C.R.P.(NPD)No.2641 of 2015

G.K.ILANTHIRAIYAN, J.

rts

C.R.P.(NPD) No.2641 of 2015 and M.P.No.1 of 2015

18.02.2021

https://www.mhc.tn.gov.in/judis/