Madras High Court
Muthurakku vs Manimekalai on 9 June, 2023
C.R.P.(MD) Nos.415 & 523 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.06.2023
CORAM
THE HONOURABLE MR.JUSTICE C.SARAVANAN
C.R.P.(MD) Nos.415 & 523 of 2023
Muthurakku ... Petitioner in
both C.R.Ps.
Vs.
1.Manimekalai
2.S.Palaniappan ... Respondents in
both C.R.Ps.
Civil Revision Petitions filed under Section 115 of the Code of
Civil Procedure, 1908, to set aside the fair and decreetal orders both dated
14.06.2022 in I.A.Nos.1 & 2 of 2021 in A.S.No.25 of 2017 respectively
on the file of the Principal District Court, Sivagangai.
For Petitioner
in both C.R.Ps. : Mr.Ponsenthilkumaran
For Respondents
in both C.R.Ps. : Mr.Adithya Vijayalayan
COMMON ORDER
By this common order, both these Civil Revision Petitions are
being disposed of.
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C.R.P.(MD) Nos.415 & 523 of 2023
2. These Civil Revision Petitions have been filed to set aside the
fair and decreetal orders both dated 14.06.2022 in I.A.Nos.1 & 2 of 2021
in A.S.No.25 of 2017 respectively on the file of the Principal District
Court, Sivagangai.
3. The petitioner is the unsuccessful plaintiff in O.S.No.74 of 2007.
The said suit was filed for recovery of damages cost of Rs.1,40,100/- and
for mandatory injunction. After the trial was completed, the said suit was
dismissed on 06.01.2017. It appears that the petitioner failed to address
the arguments after the trial was completed in the above suit.
4. Aggrieved by the same, the petitioner filed an appeal in A.S.No.
25 of 2017 before the Principal District Court, Sivagangai, against the
Judgment and Decree dated 06.01.2017 passed in O.S.No.74 of 2007.
The said appeal was dismissed for default on 11.09.2020.
5. Under these circumstances, the petitioner filed I.A.No.1 of 2021
in A.S.No.25 of 2017 for condonation of delay of 121 days in filing the
application for restoration of appeal. The said I.A. was allowed on
18.11.2021 with direction to the petitioner to pay a sum of Rs.2,000/- on
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C.R.P.(MD) Nos.415 & 523 of 2023
or before 25.11.2021. However, the petitioner failed to remit the amount
in time.
6. Therefore, the petitioner filed I.A.No.2 of 2022 for extension of
time for remitting the aforesaid amount of Rs.2,000/-. The said I.A.No.2
of 2022 was dismissed vide order dated 14.06.2022 which is impugned in
C.R.P.(MD) No.415 of 2023. Consequently, I.A.No.1 of 2022 was also
dismissed on the very same day vide order dated 14.06.2022 which is
impugned in C.R.P.(MD) No.523 of 2023.
7. The learned counsel for the petitioner submits that the petitioner
has a fair case on merits, and therefore, the present Civil Revision
Petitions are liable to be allowed by fixing the time for disposal of the
appeal.
8. Per contra, the learned counsel for the respondents submits that
the petitioner has allowed the appeal to be dismissed for default on
11.09.2020. There is negligence on the part of the petitioner for not
prosecuting the appeal. It is submitted that despite opportunities being
granted to the petitioner, the petitioner failed to appear before the
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C.R.P.(MD) Nos.415 & 523 of 2023
Principal District Court, Sivagangai and the appeal was dismissed. It is
further submitted that despite the being condoned by the Court in I.A.No.
1 of 2022 on 18.11.2021 with direction to remit a sum of Rs.2,000/- on or
before 25.11.2021, the petitioner has filed to remit the amount within the
time period and therefore, no further indulgence is required and therefore,
the order passed in I.A.No.1 of 2022 be upheld.
9. I have considered the arguments advanced by the learned counsel
for the petitioner and the respondents.
10. It is clear that the petitioner was negligent both in not
participating the proceedings in appeal filed by him against the Judgment
and Decree dated 06.01.2017 passed in O.S.No.74 of 2007 which was
therefore dismissed for default on 06.01.2017 and in not remitting the
amount of Rs.2,000/- that was ordered to be paid while allowing the
I.A.No.1 of 2022 filed by the petitioner for condoning the delay of 121
days in filing the application for restoration of appeal, on 18.11.2021.
11. However, in my view, the petitioner deserves to a fair chance to
make out the case before the Principal District Court, Sivagangai as the
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C.R.P.(MD) Nos.415 & 523 of 2023
petitioner was negligent in not participating the proceedings in appeal and
in not remitting the amount. Since the petitioner is entitled to redress his
grievances in the appeal filed by him, I am inclined to interfere with the
impugned orders.
12. Therefore, the impugned orders are set aside and the case is
remitted back to the Principal District Court, Sivagangai, to dispose of the
appeal on merits providing the petitioner to pay the cost of Rs.2,000/-
already awarded by the Court below and a further sum of Rs.3,000/-, in
all, a sum of Rs.5,000/- to the respondents, within a period of 30 days
from the date of receipt of a copy of this order.
13. The petitioner shall file a memo of compliance before the
Principal District Court, Sivagangai including the proof of payment. On
such compliance, the Principal District Court, Sivagangai shall restore the
appeal to its file and dispose the same on merits and in accordance with
law, within a period of 6 moths thereafter.
14. The petitioner is directed to co-operate with the court
proceedings.
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C.SARAVANAN, J.
jen
15. Accordingly, these Civil Revision Petitions are allowed. No
cost.
09.06.2023
NCC : Yes/No
Internet: Yes/No
Index: Yes/ No
jen
To
The Principal District Court, Sivagangai.
C.R.P.(MD) Nos.415 & 523 of 2023
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https://www.mhc.tn.gov.in/judis
