Interest of justice and fair adjudication should be considered in allowing the condonation of delay and restoration of a suit.

JUDGMENT

(Prayer: Civil Revision Petition filed under Section 115 of Code of Civil Procedure praying to set aside the Fair and decreetal order made in I.A.No.907 of 2017 in O.S.No.385 of 2003 on the file of District Munsif, Thuraiyur.)

1. This Civil Revision Petition has been filed challenging the order passed by the learned District Munsif, Thuraiyur in I.A.No.907 of 2017 in O.S.No.385 of 2003, dated 10.10.2017.

2. The respondents are the defendants and the revision petitioners are the plaintiffs in O.S.No.385 of 2003. The said suit was dismissed for default on 23.09.2016. Hence, the revision petitioners have filed an application to restore the suit along with I.A.No.907 of 2017 to condone the delay of 186 days. The reason assigned by the revision petitioners for non-appearance in the suit was that the second revision petitioner was affected by viral fever. However, the same was not accepted by the Court below and the petition to condone the delay of 186 days was dismissed. Challenging the same, the petitioners/plaintiffs have filed this Civil Revision Petition.

3. Per contra, the learned counsel appearing for the respondents made a strong objection to allow the revision petition on the ground that the reasons assigned for the non-appearance of the petitioners before the Court below was that the viral fever. Even, if the petitioners were affected for viral fever, nothing prevented them from filing a petition for restoration of the suit in time. But, in the present case, deliberately the petitioners have not made any application for restoration of the suit within time with the mala fide intention to drag the matter as this matter is already pending before the Court below for the past 19 years. Therefore, he prayed for dismissal of the same.

4. Heard the learned counsel for the petitioners as well as the learned counsel for the respondents and perused the materials available on record.

5. Upon hearing the learned counsel for the petitioners as well as the learned counsel for the respondents, it appears that the suit was dismissed for default for non-appearance of the parties. The Court below has not allowed the application to condone the delay as well as to restore the suit on the basis of the reasons assigned by the petitioners/plaintiffs. A perusal of the order would clearly shows that, though the petitioners have filed the suit for permanent injunction in the year 2003, they have not shown any interest to contest the suit and the said suit was dismissed for default in the year 2006. Subsequently, another application was filed to set aside the order, which was allowed and the said suit was restored to file. Now once again the suit was dismissed for default after eleven years.

6. In these circumstances, the Court below dismissed the application for condonation of delay on the ground that there was no representation on behalf of the petitioners. Though the reason for nonappearance on the ground of viral fever appears to be not a reasonable ground, this Court is of the view that in the interest of justice and for fair adjudication, the delay of 186 days is to be condoned on terms and both the parties are to be given opportunity to put their case before the Court below.

7. Accordingly, the Civil Revision Petition is allowed and the fair and decreetal order made in I.A.No.907 of 2017 in O.S.No.385 of 2003 on the file of learned District Munsif, Thuraiuyur is set aside on condition that the petitioners shall pay costs of Rs.5,000/- (Rupees Five Thousand Only) to respondents 1 and 3 through their counsel within fifteen (15) days from the date of receipt of a copy of this order, failing which, this Civil Revision Petition shall stand dismissed without any further reference to this Court.

8. Since the suit is pending from the year 2003, this Court directs the learned District Munsif, Thuraiyur to dispose of the suit in O.S.No. 385 of 2003, in accordance with law, within a period of six months from the date of receipt of a copy of this order. I