Madras High Court
Shanmugamurthy vs Eswaramurthy on 1 August, 2024
C.R.P.(NPD).No.3815 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.08.2024
CORAM:
THE HONOURABLE MR.JUSTICE P. DHANABAL
C.R.P.(NPD).No.3815 of 2022
Subbiah Gounder (Dead)
1. Shanmugamurthy
2. Dhandapani
3. Rajeshwari
4. Mahalingam ... Petitioners
vs.
1. Eswaramurthy
2. Karthik
3. Deivanai
4. Arukani
5. Rangathal ... Respondents
Civil Revision Petition filed under Section 115 of the Civil Procedure
Code, to set aside the fair and decreetal order dated 26.09.2022 passed by
the Principal District Munsif Court, Coimbatore in I.A.No.406 of 2018 in
O.S.No.1391 of 2005 and allow the Civil Revision Petition.
For Petitioners : Mr.S.Manikandan
For R1 to R3 : Mr.Rahul Balaji
1/10
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD).No.3815 of 2022
ORDER
This Civil Revision Petition has been preferred as against the order
passed in I.A.No.406 of 2018 in O.S.No.1391 of 2005 on the file of the
Principal District Munsif, Coimbatore, dated 26.09.2022, wherein, these
petitioners have filed a petition before the Trial Court under Section 5 of the
Limitation Act, to condone the delay of 548 days in filing a petition to
restore the suit, which was dismissed for default. The said petition was
dismissed by the Trial Court. Against which, the present Civil Revision
Petition is filed.
2. The case of the petitioners is that they are the plaintiffs in the main
suit and they have filed a suit for partition as against the respondents. The
petitioners are villagers and they do not have knowledge about the Court
proceedings. Their advocate said that, he will inform about the case but due
to his death, he was unable to intimate about the case. Already the petitioners
have filed a petition in W.P.No.25665 of 2017 and the same is pending.
Having trust over the previous counsel, he did not appear before the Court
and thereafter, the suit was dismissed for default on 17.08.2016. Since their
https://www.mhc.tn.gov.in/judis
previous counsel was died, they unable to collect the particulars about the
case status and thereby there is a delay of 548 days in filing the petition to
restore the suit, which was dismissed for default on 17.08.2016.
3. The case of the respondents is that the suit was filed before the sub
Court, Coimbatore in O.S.No.388 of 1989 and the written statement was
filed in the year 1991 and for the past several years, the petitioners did not
come forward to proceed with the case. Lastly, on 17.08.2016 due to non
appearance, the suit was dismissed for default. Thereafter, without any valid
reasons, they filed a petition for condoning the delay of 548 days in filing
the petition to restore the suit. The averment made in the petition that in the
month of September 2017, they came to know about the death of their
previous counsel are false. The petitioners cannot blame the previous
counsel and they have to follow the case. The suit is pending from the year
1993 onwards and in other cases, they appeared and conducted the cases. In
fact, these petitioners filed a petition before the Tahsildar to declare them as
tenants and the same was allowed. The respondents filed appeal in A.No.14
of 2005, where the petitioners appeared through counsel and the said appeal
was allowed on 30.07.2010. Thereafter, the Revision Petition was filed in
https://www.mhc.tn.gov.in/judis
C.R.P.No.26116 of 2010 there also, the petitioners appeared through counsel
and the said revision was also dismissed. Thereafter, the petitioners filed
Writ Petitions before this Court and also they gave a complaint as against the
respondents. Then, filed Crl.O.P.No.27862 of 2017 and thereafter, the said
case was closed by the police officials. Therefore, the petitioners very well
known about the Court proceedings and they all along conducted the other
cases, but due to lack of merits in this case, they failed to proceed with the
case and only now to delay the proceedings, they filed this petition by
stating false reasons.
4. Before the Trial Court, no oral or documentary evidences adduced
by either side. On the side of the respondents they marked Ex.R1 to R8. The
Trial Court after hearing both sides and perusing the records, dismissed the
petition.
5. The learned counsel appearing for the petitioners would contend
that this petitioners are the plaintiffs in the main suit and filed a suit for
relief of partition and separate possession against this respondents. They
engaged their counsel and the said counsel assured that, he will inform about
https://www.mhc.tn.gov.in/judis
the stage of the case and in the meantime, he died, and that, the stage of the
case was not informed to the petitioners. Thereafter, they came to know
about the stage of the case, it was dismissed for default on 17.08.2016.
Thereafter, there is a delay in collecting the papers since their previous
counsel was dead. Therefore, there is a delay of 548 days in filing a petition
to restore the suit, which was dismissed for default on 17.08.2016. The
petitioners are villagers and they have no knowledge about the Court
proceedings and thereby, they are unable to follow the case. The Trial Court
failed to consider the above said reasons and dismissed the petition.
Therefore, the order passed by the Trial Court is liable to be set aside by
allowing this Civil Revision Petition.
6. The learned counsel appearing for the respondents would contend
that the petitioners have already conducted so many cases as against these
respondents. They have already filed a petition before the Tahsildar, to
declare them as tenants in the suit. But the said petition was allowed and as
against the said order, the respondents preferred an appeal and the said
appeal was also dismissed thereafter the petitioners' preferred Revision
Petition before the District Revenue Officer, Coimbatore and the same was
https://www.mhc.tn.gov.in/judis
also dismissed. In both the Appeals as well as the Revision Petition, the
petitioners appeared through counsel and conducted the cases. Apart from
that, they also filed Writ Petitions before this Court and also filed
Crl.O.P.No.27862 of 2007, for direction and the police also after enquiry
closed the petition on 20.02.2018. Therefore, the petitioners very well
known about the Court proceedings and they all along conducted the other
cases but, wantedly, left this matter for dismissed for default. The reasons
stated by the petitioners are not genuine. Therefore, the Trial Court correctly
dismissed the petition and the present revision petition is liable to be
dismissed.
7. This Court heard both sides and also perused the records.
8. In this case, the petitioners are the plaintiffs in the main suit and the
main suit was filed for partition and separate possession as against the
respondents herein. The said suit was dismissed for default on 17.08.2016
due to non-appearance of the petitioners. According to the petitioners, they
engaged their counsel and their counsel assured that he would inform about
the stage of the case whenever their presence is required. But their counsel
unfortunately died and thereby they unable to know about the stage of the
https://www.mhc.tn.gov.in/judis
case. Thereafter, they came to know about the case that the suit was
dismissed for default on 17.08.2016. Since they are from village they are
unable to receive the bundles and their previous counsel died, there is a
delay of 548 days. The above said reason stated by the petitioners are stoutly
denied by the respondents and according to the respondents these petitioners
have conducted the other cases by engaging their counsels and they cannot
take a defence as they have no knowledge about the Court proceedings.
9. This Court has carefully perused the entire materials and the
reasons stated by the petitioners that they are villagers and they have no
knowledge about the Court proceedings is not a reason to condone the delay.
Moreover, they stated that their previous counsel died, but they have not
stated when their previous counsel died and when they came to know about
the death of the previous counsel and they have not stated about on which
date, they came to know about the exparte decree. Moreover, on perusal of
the records submitted by the respondents, they revealed that already these
petitioners have conducted the cases before the revenue officials in respect
of the tenancy over the property and thereafter the petitioners have filed Writ
Petitions before this Court by engaging their counsels and also filed
https://www.mhc.tn.gov.in/judis
Criminal Original Petition for direction to the police. Therefore the above
said documents clearly shows that the petitioners have all along conducted
the other cases except this partition suit. The petitioners failed to explain for
the huge delay of 548 days and without proper explanation for the delay, it is
not appropriate to allow the petition to condone the delay of 548 days.
10. The learned counsel appearing for the respondents has relied on
the following Judgments:
(1) Bharat Babulal Makwana and Others vs. Narottam V. Sheth and
Another reported in 2014 SCC Online Bombay 1135.
(2) Esha Bhattacharjee vs. Managing Committee of Raghunathpur
Nafar Academy and Others reported in 2013 (4) CCC 32.
11. On a careful perusal of the above said judgments, it is clear that
the exercise of judicial discretion of Court shall be allowed, if there is no
presumption that the delay is occasioned deliberately or on account of
culpable negligence.
12. In the case on hand, the petitioners conducted all other cases and
https://www.mhc.tn.gov.in/judis
left the matter for dismissed for default and the reasons stated by the
petitioners are not genuine. In this context, the Trial Court also after
referring various judgments of the Hon’ble Supreme Court and this Court
has correctly dismissed the petition. Therefore, the order passed by the Trial
Court is reasoned and proper and it does not warrant interference.
13. In view of the above said discussions, this Court is of the opinion
that the Civil Revision Petition has no merits and the same has to be
dismissed.
14. In the result, the Civil Revision Petition is dismissed. There shall
be no order as to costs.
01.08.2024
ssi
Index :Yes/No
Internet : Yes/No
Neutral Citation :Yes/No
To:
1.The Principal District Munsif,
Coimbatore.
https://www.mhc.tn.gov.in/judis
2.The Section Officer,
V.R.Section, High Court of Madras.
P. DHANABAL, J.,
ssi
01.08.2024
https://www.mhc.tn.gov.in/judis
