Madras High Court
K.Velusamy vs Dhanalakshmi on 17 February, 2025
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
CRP NOs. 319and 320 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17-02-2025
CORAM
THE HONOURABLE MR JUSTICE A.D.JAGADISH CHANDIRA
CRP Nos. 319 and 320 of 2023
and CMP No.2702 of 2023
1.K.Velusamy
2.Eswaran ... Petitioners in both the revisions
vs
1. Dhanalakshmi
2. Sivaraj
Nachimuthu (died)
3. Aranganayakam
4.Chinnasamy
5.Karuppathal
6.Myilathal
7.Vellaithai
8.Eswaran
9.Deivathaal
10.Manogaran
11.Sivakami
12.Lakshmi ... Respondents in both the revisions
Civil Revision Petitions filed under Article 227 of the Constitution of India
against the docket orders dated 08.12.2022 in I.A.Nos.1313 of 2022 (in respect of
CRP No.319 of 2023) and I.A.No.1312 of 2022(in respect of CRP No.320 of
2023) in O.S.No.104 of 2008 on the file of District Munsif, Dharapuram.
For Petitioners:Mr.K.Sudhakar
1/10
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For Respondents:Mr.S.B.Viswanathan
Ms.E.Akila
For R.1
R.2 to R.12 – Dispensed with vide order
dated 22.02.2023 in both the cases.
COMMON ORDER
The Civil Revision Petitions have been filed against the docket orders
passed in I.A.Nos.1313 and 1312 of 2022 dated 08.12.2022.
2. I.A.No.1313 of 2022 has been filed to reopen the case to implead the
legal representatives of the deceased 3rd defendant, who died on 12.05.2021.
3. I.A.No.1312 of 2022 has been filed to condone the delay of 109 days in
filing the restoration petition against the order of dismissal against the third
defendant.
4. The petitioners are defendants 2 and 7. Mr.K.Sudhakar, learned counsel
for the revision petitioners submits that the plaintiff/1st respondent herein is not
an interested in pursuing the case diligently and it is his further contention that the
proceedings had been delayed only because of the conduct of the first
respondent/plaintiff.
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5. Learned counsel for the petitioners further submits that pending trial, the
14th defendant passed away on 31.08.2018 and the third defendant died on
12.05.2021. In the meanwhile, the 10th defendant also passed away. Despite the
trial Court, recording the death and granting time to implead the legal
representatives of the deceased respondents 3, 4 and 10, the first
respondent/plaintiff has not chosen to take any steps within a specific time. The
learned trial Judge, on his own motion, closed the proceedings for not impleading
the legal representatives of the deceased defendants stating that the suit had
abated as against the defendants 3, 10 and 14. The very same plaintiff filed
petition to recall the witnesses and to re-open the case and the same was
dismissed by the trial Court, against which, the plaintiff filed CRP No.1057 and
1058 of 2022, which were dismissed by this Court by a Common Order dated
30.03.2022.
6. Learned counsel for the petitioners further submits that even during the
pendency of the civil revisions petitions, the the first respondent/plaintiff was
aware of the death of the third defendant and no steps were taken by the plaintiff
to implead the legal representatives of the third defendant and thereby the suit
against the third defendant also got abated.
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7. Learned counsel for the petitioners further submits that this Court,
finding that the suit was of the year 2008 and the plaintiff was wantonly not
taking steps to delay the proceedings to keep the litigation alive, dismissed CRP
Nos.1057 and 1058 of 2022. When that being so, the trial Court ought not to have
allowed the petition filed by the first respondent/plaintiff to reopen the case to
implead the legal representatives of the deceased 3rd defendant, who died on
12.05.2021 and also ought not to have condoned the delay of 109 days in filing
the restoration petition against the order of dismissal against the third defendant.
Learned counsel for the petitioners would therefore pray to set aside the order
passed by the trial Court.
8. Per contra, learned counsel appearing for the first respondent/plaintiff
would submit that since Civil Revision Petitions were pending before this Court,
the first respondent/plaintiff was unable to proceed further in the matter and
thereby, there had been a delay and the trial Court rightly finding that the plaintiff
has shown sufficient cause to condone the delay of 109 days in filing the
restoration petition against the order of dismissal against the third defendant and
also allowed the petition filed to reopen the case and therefore seeks for dismissal
of both the Civil Revision Petitions.
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9. Heard both sides and perused the materials available on record.
10. The suit in O.S.No.104 of 2008 has been filed for declaration and
mandatory injunction. The suit was filed on 17.03.2008 and chief examination of
witness is commenced on 23.01.2025. The 10th defendant passed away on
02.02.2015. The first respondent/plaintiff had not taken steps and the Court had
extended the time from 10.09.2015 to 12.04.2016 and since no steps were taken
by the first respondent/plaintiff, the suit came to be dismissed against the
10th defendant on 12.04.2016. In the meanwhile, 14th defendant also passed away
on 10.09.2018 and since the first respondent/plaintiff had not taken any steps to
implead the legal representatives of the 14th defendant, the suit came to be
dismissed against 14th defendant on 21.10.2021. Subsequently, the 3rd defendant
also died on 15.05.2021. The case was listed on 11.11.2021 and the plaintiff did
not cooperate for cross examination and the case was posted for arguments and
posted for judgment on 21.12.2021.
11. Earlier, the first respondent/plaintiff filed applications in I.A.No.34 and
35 of 2022 to reopen and recall the case and the same was dismissed on
24.01.2022. Against the said dismissal, the first respondent had earlier
approached this Court in CRP Nos.1057 & 1058 of 2022 and this Court while
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dismissing the revisions, has passed the following order on 30.03.2022:-
“ 8. The order of the learned District Munsif,
Dharapuram which has not been controverted by the
petitioner would show that the suit for a declaration
and mandatory injunction had been filed by the
revision petitioner on 17.03.2008, then the matter was
posted for cross examination of plaintiff on
12.08.2016. The petitioner has not come forward to
produce any evidence or submit herself for cross
examination. Ultimately on 23.06.2017 since the
petitioner had not produced any further evidence on
her side, her evidence was closed. The matter was
then adjourned for the defendants side evidence.
9. The applicant filed an application for reopening
the case and the petitioner had produced another
witness P.W.2 on her side. The cross examination of
P.W.2 was closed on 26.04.2018 and from 26.04.2018
the matter was being adjourned for further evidence
on the side of the plaintiff. Since the petitioner had
not come forward to produce further witnesses, the
evidence on the side of the petitioner was closed on
03.04.2019. Once again from 07.06.2019 till the date
of the filing of this impugned application in 2022 no
further evidence was produced by the petitioner.
Ultimately, the evidence was closed and defendants
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side evidence was opened. D.W.1 was examined on
11.12.2020 in chief and thereafter was posted for
cross examination till 22.03.2021. Since the petitioner
did not come forward to cross examine D.W.1, the
cross examination was closed on 22.03.2021. In the
meanwhile the 3rd defendant had died and the matter
was listed for bringing on records the legal
representatives of the deceased 3rd defendant. This
was hanging fire from 19.07.2021 to 13.08.2021. On
13.08.2021, the suit was dismissed as abated against
the 3rd defendant. On 02.09.2021, D.W.2 was
examined and he was not further cross examined and
his evidence was closed on 23.09.2021. Meanwhile,
since no steps were taken for bringing on record the
legal representative of the 14th defendant who had
died, the suit was dismissed as abated as against the
14th defendant.
10. D.W.3 and D.W.4 were examined on 01.11.2021
and their cross examination was also closed in the
light of no representation on the side of the petitioner.
Similarly, cross examination of D.W.5 was closed on
11.11.2021. From 19.11.2021 to 21.12.2021 the case
was kept aside for arguments. During these hearings
also the petitioner had not come forward to proceed
with the case. The suit was thereupon listed for ex
parte judgment on 03.04.2019. It is at this juncture
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that the impugned petition has been moved. The
conduct of the petitioner throughout the proceedings
indicates an indifferent attitude to proceed with the
case. The intent appears to keep the litigation alive.
This conduct has definitely prejudiced the
defendants/respondents.
12. This Court, in the earlier revision petitions, finding that the conduct of
the plaintiff through out the proceedings had indicated an indifferent attitude to
proceed with the case and had intended to keep the litigation alive, dismissed both
the civil revision petitions.
13. When this Hon'ble Court has given a specific finding against the
conduct of the first respondent/plaintiff in wilfully delaying the process, the trial
Court, without reference to the same, had allowed the petition to condone the
delay of 109 days in filing the restoration petition against the order of dismissal
against the third defendant and also reopened the case to implead the legal
representatives of the deceased third defendant who died on 12.05.2021. This
Court is of the opinion that the trial Court ought not to have allowed both the
applications taking note of the conduct of the first respondent/plaintiff.
14. In view of the above, the Docket orders dated 08.12.2022 passed by the
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District Munsif, Dharapuram in I.A.Nos.1313 and 1312 of 2022 in O.S.No.104
of 2008 are set aside and both the Civil Revision Petitions are allowed.
15. The trial Court/District Munsif Court, Dharapuram shall take steps to
dispose of the suit in O.S.No.104 of 2008 as expeditiously as possible.
No costs. Consequently, connected miscellaneous petition is closed.
17-02-2025
sr
Index:yes/no
Website:yes/no
To
The District Munsif Court, Dharapuram
A.D.JAGADISH CHANDIRA,J.,
sr
https://www.mhc.tn.gov.in/judis
CRP Nos. 319 and 320 of 2023
17.02.2025
https://www.mhc.tn.gov.in/judis
