Litigant not penalized for counsel's fault; condone delay in suit restoration with costs, excluding COVID period.

ORDER

Aggrieved by the dismissal of an application to condone the delay in filing the restoration application under Section 5 of the Limitation Act and Section 151 of the Code of Civil Procedure, the plaintiff is on revision before me.

2. For the sake of convenience, the partis are referred to as per their ranks in the suit.

3. The plaintiff claimed that he purchased the property from the defendant by way of a registered sale deed dated 18.08.2011 registered on the file of the Sub Registrar, Y.Othakkadai, in document No.4566/2011. He claimed that the sale was made by the defendant through her power of attorney. On the date of the sale, the plaintiff was put in possession and enjoyment of the property. On the basis of the sale deed, the plaintiff alleged that he has also mutated the revenue and municipal records in his name.

4. The plaintiff alleged that after the purchase, he pulled down the superstructure then existing over the property, with an intention to put up a new construction. When he continued his attempt in that light, the defendant together with her husband came over to the suit property and demanded an additional sum of Rs.2,00,000/- as there has been a hike in the land value. The plaintiff denied the claim of the defendant. Consequently, she lodged a false police complaint before the K.Pudur Police Station at Madurai alleging cooked up stories.

5. The plaintiff pleaded that each time he went to the property along with his Engineer to put up a superstructure, he was obstructed by the defendant. Hence the suit for permanent injunction.

6. Summons were served on the defendant. The defendant filed a detailed written statement. On the basis of the pleadings, issues were framed and the matter was listed for trial. When the matter was listed on 06.04.2017, the plaintiff did not appear before the court. Being left with no other option, the learned District Munsif, Madurai Taluk, Madurai dismissed the suit for default.

7. In order to restore the suit, the plaintiff presented two applications, one under Section 5 of the Limitation Act and another under Order IX Rule 9 of the Code of Civil Procedure. According to him, after presentation of the plaint, whenever he contacted his then counsel, he was informed by him that he will intimate him about the date on which he has to appear before the court. Believing the statement made by the counsel, the plaintiff, being a banana vendor in Coimbatore, was attending to his other affairs rather than following the suit.

8. It was only when he came to Madurai in the last week of September of 2021, he came to know that the suit had been dismissed for default. Pleading that his absence from the court was on account of the aforesaid reasons, he sought the relief of the court to condone the delay of 1614 days in filing the restoration petition. This petition was numbered as I.A.No.56 of 2022.

9. The learned Judge called upon the defendant to file a counter. The defendant filed a detailed counter stating that there is absolutely no explanation for the long delay of 1614 days.

10. The learned Trial Judge took up the application for disposal.

After referring to two judgments of this Court, the learned Judge dismissed the petition. In the dismissal order, there is no detailed discussion whether the plaintiff has made out a sufficient cause or not. This crucial issue had not been gone into by the learned District Munsif.

11. I heard Mr.K.S.Kathiravan, appearing for Mr.C.Mahadevan, for the petitioner and M/s.Bava Tharani, for Mr.Vishnuvarthanan for the responde