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2013 Supreme(Mad) 1624
High Court of Judicature at Madras
S. MANIKUMAR, J.
Muniyan
Versus
Eromia & Another
C.R.P.(NPD).No. 1363 of 2013
Decided On : 15-04-2013
Advocate Appeared:
For the Petitioner:Mrs. N.K. Thiruveni, Advocate.
The main legal point established in the judgment is that delay in prosecuting an appeal should be justified by sufficient cause, and the reasons for restoration should be genuine and not aimed at harassing the opposing party.
Headnote:
Restoration - Civil Procedure - Code of Civil Procedure - Section 41 Rule 19 - Summary Judgement
Fact of the Case:
The case involved a dispute over partition of properties and mesne profits. The appellant's appeal was dismissed for default, and the appellant filed multiple applications for restoration citing reasons such as an accident and absence due to illness.
Finding of the Court:
The court found that the appellant had delayed the litigation with the intention to harass the decree holders and dismissed the petition for restoration.
Issues: The main issue was whether the appellant's reasons for restoration were genuine and whether the delay in prosecuting the appeal was justified.
Ratio Decidendi: The court applied the legal principle that delay in prosecuting an appeal should be justified by sufficient cause, and the reasons for restoration should be genuine and not aimed at harassing the opposing party.
Final Decision: The Civil Revision Petition was dismissed by the court.
1. Civil Revision Petition is directed against the order and decretal order made in I.A.No.50 of 2012 dated 30.08.2012 in AS.No.18 of 2009 on the file of the learned Principal District Judge, Villupuram, dismissing the application filed for restoration of an appeal.
2. Material on record discloses that a suit in O.S.No.240 of 2003, has been filed by the respondents, for partition in respect of their 2/3 share in the suit schedule properties, for mesne profits and for other reliefs. Upon contest, the learned Principal District Judge vide judgment and decree dated 24.06.2004, has granted the relief that the plaintiffs Eromia and Appavoo are entitled to 1/3 share each, in the suit schedule property. The trial Court has not granted the relief of mesne profits. Being aggrieved by the same, the 1st defendant has filed an appeal on the file of the learned Subordinate Judge, Villupuram in the year 2006. The seal affixed on the memorandum of grounds of appeal shows that the appeal papers were received by the learned Subordinate Judge, Villupuram on 16.11.2004. The appeal seemed to have been numbered in the year 2006 as A.S.No.109 of 2006. The appeal has not been disposed of for nearly three years till 2009 and that the same has been transmitted to the learned Principal District Judge, Villupuram and renumbered as A.S.No.18 of 2009. The said appeal has been posted in the list on 03.08.2009 and at the instance of the appellant, it has been adjourned to 04.08.2009. There was no representation on 04.08.2009. Hence, it came to be dismissed for default on 04.08.2009, which constrained the revision petitioner / appellant to file an application to restore the appeal, which has been dismissed for default. Accordingly, the revision petitioner / appellant has filed two applications, viz., I.A.No.34 of 2011 to condone the delay of 222 days in filing an application to set aside the order of dismissal and I.A.No.109 of 2011, to restore the appeal, which was dismissed on 04.08.2009 for default.
3. Material on record discloses that by order dated 13.09.2011, the applications have been ordered on payment of cost of Rs.1,000/-. Again when the appeal was listed on 07.02.2012, the matter was not represented on 07.02.2012. Hence, the learned Principal District Judge, Villupuram has dismissed the appeal for default. Therefore, the revision petitioner / appellant has filed another application under Section 41 Rule 19 of Code of Civil Procedure to restore the appeal, which was dismissed for default on 07.02.2012.
4. Material on record discloses that the reason assigned by the revision petitioner / appellant was that on 14.01.2012, when he was riding a motorcycle, he met with an accident and that he was taking treatment in a private hospital at Thiruvananthapuram and that therefore, he could not meet his counsel and instruct him to conduct the appeal. After recovery from illness, he was informed of the dismissal of the appeal for default. In the above said circumstances, in the supporting affidavit filed for restoration of the appeal, which was dismissed for default on 07.02.2012, he has submitted that his absence was neither wilful nor wanton, and hence sought for restoration.
5. Per contra, narrating the events stated supra, as to how the appeal was procrastinated, the respondents/decree holders, have submitted that the reasons assigned for restoration are not bonafide. They have also submitted that in the absence of any medical record to prove that the revision petitioner / appellant, met with an accident and took treatment in a private hospital, the reasons assigned, were only for the purpose of keeping the litigation alive with an intention to harass them. According to the respondents, in a suit for partition between full blood brothers, the trial Court after adjudication of the inter se rights has ordered the reliefs prayed for and after successful procrastination of the appeal for a long time, since the date of filing of the suit, the revisi
