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2009 Supreme(Mad) 362
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE A.C. ARUMUGAPERUMAL ADITYAN
V. Sivaramalingam
Versus
The State Election Commission rep by its Election Commissioner & Others
C.R.P.(NPD) No.3926 of 2008 and M.P.No.1 of 2008
Decided on: 28-01-2009
For the Petitioner:Srinath Sridevan, Advocate.
For the Respondents:R1 to R3, Mrs. Shanthi Rakkappan, Govt.Advocate(CS), R4, A. Bobblie, R6, Govind Chandrasekaran, Advocates.
The court has the discretion to restore a case under Order 9 Rule 9 of CPC, but may impose costs as a condition for restoration.
Headnote:
Order 9 Rule 9 of CPC - Restoration of Case - The court allowed the revision petition to restore the case on the condition that the petitioner pays a specified cost to the contesting respondent.
Fact of the Case:
The application to restore a case was dismissed by the trial Judge due to lack of evidence of the petitioner's illness on the date of hearing.
Finding of the Court:
The court found that the petitioner should be given an opportunity to put forth his case after restoring the case, but imposed a cost on the petitioner to be paid to the contesting respondent.
Issues: Dismissal of application under Order 9 Rule 9 of CPC, lack of evidence of illness on the date of hearing.
Ratio Decidendi: Opportunity to be given to the petitioner to put forth his case after restoration, but cost imposed on the petitioner.
Final Decision: The civil revision petition is allowed on the condition that the petitioner pays a specified cost to the contesting respondent within a specified period.
This revision has been directed against the order passed in I.A.No. 2309 of 2007 in ELOP.No.330 of 2006. The said application was filed under Order 9 Rule 9 of CPC.
There is no dispute as to the said application to restore ELOP.NO.330 of 2006 was filed in time. The learned trial Judge has dismissed the said application on the ground that the reasoning stated in the affidavit filed in support of the application by the petitioner is that since he was ill, he could not give instructions to his advocate to represent his case on the date of hearing. But he has not produced any material before the Court to show that he was ill on the date of hearing ie., on 7. 2007. Under such circumstances, I am of the view that an opportunity must be given to the petitioner to put forth his case after restoring ELOP.No.330 of 2006 but on cost which this Court fix as Rs. 1500/- to the contesting respondent viz., 4th respondent Mr. R. Krishnamoorthy.
2. In fine, this civil revision petition is allowed on condition, the petitioner pays a sum of Rs.1,500/-(Rupees one thousand five hundred ) only towards cost to the fourth respondent within a period of two weeks from today, failing which the civil revision petition shall deem to have been dismissed. Consequently, connected M.P.No.1 of 2008 is closed.
