Madras High Court
K.S.M.Janiulabudeen @ Kaja ... vs Maikhale Fernando on 30 June, 2022
CRP NPD(MD)No.1289 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 30.06.2022
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
CRP NPD(MD)No.1289 of 2015
1.K.S.M.Janiulabudeen @ Kaja Mohaideen
through his power agent,
K.S.Abdul Barakath
2.K.S.M.Fathima Natchi ... Petitioners
Vs
1.Maikhale Fernando
2.Rayappan
3.K.S.M.Mohammed Hussain ... Respondents
Prayer: Petition filed under Article 227 of the Constitution of India, to set
aside the judgment and decree in I.A.No.82 of 2010 in O.S.No.87 of 2000 on
the file of the learned District Munsif cum Judicial Magistrate Court,
Rameswaram dated 12.01.2011.
For Petitioner : Mr.S.A.Ajmalkhan
For R1 : No appearance
For R3 : Mr.P.Thiyagarajan
1/6
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CRP NPD(MD)No.1289 of 2015
ORDER
This Civil Revision Petition is filed as against the fair and
decreetal order passed in I.A.No.82 of 2010 in O.S.No.87 of 2000, on the file
of the learned District Munsif cum Judicial Magistrate Court, Rameswaram
on 12.01.2011.
2.The petitioners are the plaintiffs in O.S.No.87 of 2000, which
was filed before the District Munsif cum Judicial Magistrate Court,
Rameswaram, for the relief of permanent injunction against the third
respondent not to alienate the suit property and not to alter the physical
features of the suit property. The suit was dismissed for default on 12.06.2006
and he came to know about the dismissal order only on 07.03.2010.
Thereafter, the petitioner has taken out an application in I.A.No.8 of 2010 to
restore the suit along with the application, under Section 5 of Limitation Act
to condone the delay of 1351 days in filing the petition to restore the suit. The
said application was dismissed by the trial Court, considering the conduct of
the petitioner that when the suit was riped for trial, he allowed the suit to get
dismissed for default twice and this is the third time the petitioner has taken
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CRP NPD(MD)No.1289 of 2015
out similar application and that too without assigning any valid reasons for
such inordinate delay of 1357 days in preferring the petition to restore the
suit. Aggrieved over the same, the present Civil Revision Petition is filed.
3.The learned counsel appearing for the petitioners submits that
the suit was originally pending before the District Munsif Court,
Rameshwaram and it was subsequently transferred to Subordinate Court,
Ramanathapuram and therefore they could not contact their Advocate to
ascertain the stage of the suit. He further submits that the first petitioner was
working in abroad at the relevant point of time and therefore he could not
contact the counsel. He further submits that the delay occurred is not willful.
Hence, he prayed to set aside the order of the trial Court.
4.The learned counsel for the respondent submits that the suit
itself was filed on knowing that the respondents/defendants sold the property
to the first respondent with an intention to harass the respondents/defendants.
Hence, there is no need to interfere with the order of the trial Court.
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CRP NPD(MD)No.1289 of 2015
5.This Court considered the rival submissions and perused the
materials placed on record.
6. Originally, the suit in O.S.No.87 of 2000 was filed by the
petitioners/plaintiffs for the relief of permanent injunction before the District
Munsif Court, Rameshwaram. The suit was dismissed for default on
12.06.2006. It is the contention of the petitioners' counsel that they came to
know about the dismissal of the suit only on 07.03.2010 and thereafter the
petitioners preferred I.A.No.8 of 2010 to condone the delay of 1357 days to
restore the suit. The reason assigned for such inordinate delay is that the suit
was originally instituted before the District Munsif cum Judicial Magistrate
Court, Rameswaram and subsequently it was transferred to the Sub Court,
Ramanathapuram. Since the petitioners could not contact their counsel after
2006, the delay of 1357 days has been occurred. The trial Court has
considered that the transfer application itself is filed at the instance of the
petitioners/plaintiffs referring the another suit for partition filed by these
petitioners/plaintiffs pending before the Sub Court, Ramanathapuram and got
an order for transferring the suit and the said suit has been transferred from
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CRP NPD(MD)No.1289 of 2015
the District Munsif Court, Rameshwaram to the Subordinate Court,
Ramanathapuram. It is also stated in that order that when the suit was riped
for trial, the petitioner allowed the suit to be dismissed for default on two
occasions. Considering the conduct of the petitioners/plaintiffs and also
taking into account the inordinate delay in filing the application to restore the
suit, the trial Court rightly dismissed the application.
7.In view of the above, this Court is not inclined to entertain this
Civil Revision Petition and accordingly, this Civil Revision Petition is
dismissed. No costs.
30.06.2022
Index : Yes / No.
Internet : Yes / No.
vrn
To
1.The District Munsif cum Judicial Magistrate Court, Rameswaram.
2.The Subordinate Court, Ramanathapuram.
https://www.mhc.tn.gov.in/judis
CRP NPD(MD)No.1289 of 2015
B.PUGALENDHI, J.
vrn
Order made in
CRP NPD(MD)No.1289 of 2015
30.06.2022
https://www.mhc.tn.gov.in/judis
