Delay in filing revision due to negligence in litigation does not justify condonation.

ORDER

This Civil Miscellaneous Petition has been filed by the revision petitioner seeking condonation of delay of 361 days in preferring the revision petition, challenging the order in I.A.No.57 of 2022 in I.A.No.319 of 2016 in O.S.No.98 of 2015 on the file of the Subordinate Court, Yanam.

2.Heard Mrs.D.E.Anisree Sangavi, for Mr.Usha Ramman, learned counsel for the petitioner and Mr.V.Moorthi, learned counsel for the respondents 1 and 2 and Mr.V.Vasanthakumar, learned Additional Government Pleader (Puducherry) for the 3^rd respondent.

3.The revision petitioner is the plaintiff. The revision petitioner filed O.S.No.98 of 2015 on the file of the Subordinate Court, Yanam, for declaration of title and permanent injunction. The defendants in the suit entered appearance and also filed their written statement. Trial commenced on 08.06.2016 and as the suit was posted in the special list and there was no appearance on the side of the petitioner, the suit was dismissed for default on the same day.

4.In order to restore the suit, after setting aside the order dismissing the suit for default, the petitioner filed I.A.No.319 of 2016. The said application was posted to 05.08.2016 for serving notice on the respondents. However, finding that the petitioner had not attempted to serve the respondents, despite the earlier order, the application in I.A.No.319 of 2016 was dismissed on 05.08.2016, for non-service of notice of hearing on the respondents. In order to restore I.A.No.319 of 2016, the petitioner filed I.A.No.57 of 2022, along with delay. Though the delay was condoned on 01.07.2022, I.A.No.57 of 2022 came to be dismissed on 20.11.2023. The said order is under challenge in the present revision.

5.The learned counsel for the revision petitioner, Mrs.D.E.Anisree Sangavi, would submit that the trial Court has erroneously dismissed the application in I.A.No.57 of 2022, holding that the law permits setting aside of an order passed in the suit through one interlocutory application, but however, does not permit filing of another application to restore the application for dismissal of the said application.

6.The learned counsel for the petitioner would further submit that Section 141 of CPC relating to miscellaneous proceedings mandates that the procedure provided in the Code with regard to suits shall be followed as far as it can be made applicable to all proceedings in any Court of civil jurisdiction.

7.Pointing out to the explanation, the learned counsel for the petitioner would further state that the expression proceedings has been clarified to include proceedings under Order IX Rule 9 of CPC. The learned counsel would therefore state that the application under Order IX Rule 9 of CPC was very much maintainable and the Court ought not to have dismissed the application on erroneous assumption of law.

8.Per contra, Mr.V.Moorthi, learned counsel for the respondents 1 and 2 would submit that the trial Court has found that the petitioner has been negligent throughout and has never chosen to prosecute the suit, despite having filed the same way back in the year 2015. He would therefore state that there is absolutely no necessity to interfere with the well considered order of the trial Court.

9.I have carefully considered the submissions advanced by the learned counsel on either side. I have gone through the records.

10.As already discussed, having instituted the suit, the petitioner has not shown any diligence in prosecuting the same. When the suit was posted in the special list, the petitioner did not appear and allowed the suit to be dismissed for default. The application to set aside the dismissal of the suit for default was also not pro