Madras High Court
S.Meenakshi vs K.Chokkalingam on 5 March, 2021
C.R.P.(N.P.D).No.1180 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.03.2021
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
C.R.P.(NPD) No.1180 of 2016
1.S.Meenakshi
2.S.Balathandayutham ... Petitioners
Vs.
K.Chokkalingam ... Respondent
Prayer :- Civil Revision Petition is filed under Section 115 of the Code of
Civil Procedure to set aside the Fair and Decreetal Order dated 17.08.2015
passed in I.A.No.326 of 2014 in O.S.No.123 of 2006 on the file of the
Principal District Munsif, Chidambaram.
For Petitioners : Mr.R.Gururaj
For Respondent : Mr.A.Muthukumar
ORDER
The Civil Revision Petition arises out of the fair and decreetal
order dated 17.08.2015 made in I.A.No.326 of 2014 in O.S.No.123 of 2006
on the file of the Principal District Munsif, Chidambaram, thereby allowing
the petition to condone the delay of 1300 days in filing an application to
restore the suit.
https://www.mhc.tn.gov.in/judis/
C.R.P.(N.P.D).No.1180 of 2016
2. The petitioners are the defendants and the respondent is the
plaintiff. The respondent filed a suit for bar injunction in respect of the suit
schedule property. Thereafter, the respondent failed to appear before the
Court below and as such the suit itself was dismissed for default on
02.09.2009. After a period of 1300 days, the respondent filed a petition to
restore the suit with an application to condone the delay. The Court below
allowed the same. Aggrieved by the same, the petitioners preferred this
Civil Revision Petition before this Court.
3. The learned counsel for the petitioners would submit that the
suit was dismissed for default on 02.09.2009 ; On 24.09.2010, the
respondent and his family members executed a Mortgage Deed in favour of
the Co-operative Society ; and thereafter, on 13.05.2014, they also executed
another rectification deed in respect of the mortgage deed already executed
by them on 24.09.2010. The documents marked in support of the
respondent's contention in the condone delay petition are all subsequent to
the petition to restore the suit. He further submitted that the reasons stated
https://www.mhc.tn.gov.in/judis/
C.R.P.(N.P.D).No.1180 of 2016
in the affidavit filed in support of the condone delay petition are not
sufficient cause for the delay. The respondent has stated that he was
suffering from Jaundice and fever and as such he was not able to appear on
02.09.2009 before the Trial Court and thereafter he was bedridden and taken
country traditional treatment for Jaundice and other illness. The learned
counsel also relied upon the Judgment in the case of Office of the Chief
Post Master General & others Vs. Living Media India Ltd. & another
reported in 2012 (4) LW 100.
4. Per contra, the learned counsel for the respondent/plaintiff
would submit that the respondent/plaintiff filed a suit for bar injunction and
it has to be decided on merits, instead it was dismissed for default. Further,
he would submit that the respondent failed to appear before the Trial Court
on 02.09.2009 as he suffering from various illness. In support of his
submission, medical records were also marked as Exs.A1 to A12, which
were duly considered by the Trial Court and the restoration was allowed
with cost of Rs.1,500/- and the same was also complied with.
https://www.mhc.tn.gov.in/judis/
C.R.P.(N.P.D).No.1180 of 2016
5. Heard Mr.R.Gururaj, learned counsel appearing for the
petitioners and Mr.A.Muthukumar, learned counsel appearing for the
respondent.
6. The petitioners submitted that the suit filed by the respondent
was for a bar injunction. The suit was filed on 23.04.2006. Thereafter, the
petitioners filed their written statement on 13.07.2006 and the matter was
posted for Trial and the respondent was absent and hence the suit was
dismissed for default on 02.09.2009. After 3 ½ years i.e., 1300 days the
respondent filed a petition to restore the suit with the condone delay
petition.
7. On perusal of the affidavit filed in support of the condone
delay petition, the respondent stated that he fell ill on 01.09.2009 and
thereafter he found that he was suffering from Jaundice and fever.
Thereafter, he had taken treatment and could not able to conduct the trial
before the Trial Court. As rightly pointed out by the learned counsel for the
petitioners on 24.09.2010 the petitioners and his relatives executed the
https://www.mhc.tn.gov.in/judis/
C.R.P.(N.P.D).No.1180 of 2016
Mortgage Deed in favour of the Co-operative Society for the loan borrowed
by them. Thereafter, they also executed the rectification deed dated
13.05.2014 in pursuant to the mortgage deed. Though, the respondent filed
a petition to condone the delay in filing a petition to restore the suit on
24.03.2012, it was numbered only in the year 2014 and therefore, the
respondent did not show Sufficient Cause to condone the delay of 1300
days in filing the petition to restore the suit.
8. The learned counsel for the petitioners relied upon the
Judgment reported in 2012 (4) LW 100 in the case of Office of the Chief
Post Master General & others Vs. Living Media India Ltd. & another.
Though, it has stated that the suit cost was decided against the postal
department and as such the delay was not condoned. The relevant portion of
the Judgment is extracted hereunder:
“11.We have already extracted the reasons as
mentiond in the “better affidavit” sworn by Mr.Aparajeet
Pattanayak, SSRM, Air Mail Sorting Division, New Delhi.
It is relevant to note that in the said affidavit, the
Department has itself mentioned and is aware of the date
https://www.mhc.tn.gov.in/judis/
C.R.P.(N.P.D).No.1180 of 2016
of the judgment of the Division Bench of the High Court
in LPA Nos.418 and 1006 of 2007 as 11.09.2009. Even
according to the deponent, their counsel had applied for
the certified copy of the said judgment only in 08.01.2010
and the same was received by the Department on the very
same day. There is no explanation for not applying for
certified copy of the impugned judgment on 11.09.2009 or
at least within a reasonable time. The fact remains that
the certified copy was applied only on 08.01.2010, i.e.
After a period of nearly four months. In spite of affording
another opportunity to file better affidavit by placing
adequate material, neither the Department nor the person
in-charge has filed any explanation for not applying the
certified copy within the prescribed period. The other
dates mentoned in the affidavit which we have already
extracted, clearly show that there was delay at every
stage and file and the decision taken, there is no
explanation as to why such delay had occasioned.
Though it was stated by the Department that the delay
was due to unavoidable circumstances and genuine
difficulties, the fact remains that from day one the
Department or the person/persons concerned have not
evinced diligence in prosecuting the matter to this Court
by taking appropriate steps.”
https://www.mhc.tn.gov.in/judis/
C.R.P.(N.P.D).No.1180 of 2016
9. As rightly pointed out by the learned counsel for the
petitioners, the respondent executed the Mortgage Deed on 24.09.2010 and
as such the reasons stated in the affidavit are false and are not sufficient to
condone the delay of 1300 days. In view of the above discussions, this
Civil Revision Petition is liable to be set aside, accordingly, this Civil
Revision Petition is allowed. No costs.
05.03.2021
lpp
Index:Yes/No
Internet:Yes/No
Speaking Order: Yes/No
To
The Principal District Munsif,
Chidambaram.
https://www.mhc.tn.gov.in/judis/
C.R.P.(N.P.D).No.1180 of 2016
G.K.ILANTHIRAIYAN.J,
lpp
C.R.P.(NPD) No.1180 of 2016
05.03.2021
https://www.mhc.tn.gov.in/judis/
