The exercise of discretion by the Trial Court to condone delay under Order 9 Rule 9 CPC cannot be interfered with under Section 115 of CPC.

C.R.P(PD)No.2960 of 2021

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 04.01.2022

CORAM:

THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN

C.R.P(PD)Nos.2960

of 2021

and

C.M.P.No.21185 of 2021

R.Devi

..Petitioner

Vs.

G.Ramalingam (Died)

Rep. By is L.Rs.,

Parandhamaniyammal

..Respondent

Prayer: Civil Revision Petition filed under Section 115 of CPC., against the

order of the Sub-Court, Palacode, Dharmapuri District in IA.No.560 of 2019

in OS.No.161 of 2017 dated 29.01.2021.

For Petitioner : Ms.S.Sathiya

O R D E R

This revision is against an order, condoning the delay of 367 days

in filing an application seeking restoration of the suit in OS.No.161 of 2017

that was dismissed for default on 13.06.2018.

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C.R.P(PD)No.2960 of 2021

2.The suit in OS.No.161 of 2017 was filed by the son of the

respondent, seeking declaration of his title to the suit property. It appears

that the son of the respondent one Ramalingam had executed a settlement

deed in respect of the suit properties in favour of the petitioner herein on

14.07.2004 and has chosen to cancel the same on 16.07.2004. The petitioner

has also filed a suit, seeking declaration that the unilateral cancellation is bad

and the same is said to be pending.

3.In the mean time, the plaintiff in OS.No.161 of 2017 namely, the

husband of the petitioner and the son of the respondent herein fell ill and died

on 07.01.2019. The mother of the plaintiff in OS.No.161 of 2017 /

respondent herein came up with an instant application seeking condonation of

delay of 367 days in filing an application to restore the suit. This was resisted

by the petitioner contending that the suit was dismissed even during the life

time of the original plaintiff, and hence the restoration by the legal

representive is not permissible. It was also contended that the respondent

herein, has not assigned any reason, which would constitute sufficient cause

for condonation of delay.

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C.R.P(PD)No.2960 of 2021

4.The Trial Court, upon consideration of the explanation offered by

the respondent for the delay concluded that the respondent has made out a

sufficient cause for condonation of delay. The very fact that the son of the

respondent fell ill and died during pendency of the suit would be a reason for

condoning the delay, according to the Trial Court.

5.Ms.S.Sathiya, learned counsel appearing for the petitioner would

vehemently contend that the Trial Court was not right in condoning the delay

in the absence of a sufficient cause. She would also contend that unilateral

cancellation of the settlement deed being invalid, the very suit is not

maintainable.

6.As regards the second contention, the same cannot be gone into

at this stage. It has to be decided in the suit, upon evidence. The petitioner

has also filed a suit seeking declaration that the cancellation is invalid and the

same is said to be pending. Therefore, no prejudice would be caused to the

petitioner by the order of the Trial Court by condoning the delay.

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C.R.P(PD)No.2960 of 2021

7.Afterall, the Trial Court has exercised its discretion to condone

the delay and I do not think, such exercise of discretion can be interfered with

under Section 115 of CPC. This civil revision petition therefore, fails and it is

accordingly, dismissed. No costs. Consequently, connected miscellaneous

petition is closed.

04.01.2022

kkn

Index:No

Internet:Yes

Speaking

To-

The Sub-Court,

Palacode,

Dharmapuri District.

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C.R.P(PD)No.2960 of 2021

R.SUBRAMANIAN, J.

KKN

C.R.P(PD)Nos.2960

of 2021

and

C.M.P.No.21185 of 2021

04.01.2022

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