CRP(MD)No.2893 of 2018

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Reserved On : 03.09.2021

Delivered On : 22.10.2021

CORAM:

THE HONOURABLE MRS. JUSTICE R. THARANI

C.R.P.(NPD)(MD).No.2893 of 2018

A.Velusamy

... Petitioner/Petitioner/ Plaintiff

Vs.

N.Mohan

... Respondent/Respondent/Defendant

PRAYER: This Civil Revision Petition has been filed under Section

115 of Code of Civil Procedure Code, to call for the records in

I.A.No.869 of 2017 in O.S.No.1150 of 2007 dated 23.07.2018, on the

file of the II Additional District Munsif, Tiruchirappalli and to

set aside the same.

For Petitioner : Mr.A.Haja Mohideen

For Respondents : Mr.P.Thiyagarajan

ORDER

This petition has been filed to set aside the order in

I.A.No.869 of 2017, in O.S.No.1150 of 2007 dated 23.07.2018, on the

file of the learned II Additional District Munsif, Tiruchirappalli.

2.The petitioner herein is the plaintiff and the respondent

herein is the defendant in the suit. The petitioner herein has filed

a suit in O.S.No.1150 of 2007, for a prayer of bare injunction. The

case was dismissed for default on 10.08.2016. The petitioner filed a

restoration petition with a delay excuse petition in I.A.No.869 of

2017 to condone the delay of 649 days.

3.Brief substance of the petition in I.A.No.869 of 2017 reads

as follows:

The suit was posted on 10.08.2015 for commencing the trial.

The petitioner was not able to attend the Court, due to his sudden

illness and old age. Subsequently, the petitioner's counsel sent an

application for restoration of suit. The affidavit and paper sent by

the petitioner's counsel was misplaced in transit. The delay of 649

days is neither willful non wanton.

4.A brief substance of the counter in I.A.No.869 of 2017

reads as follows:

The suit is filed only for bare injunction in the year 2007.

The defendant entered appearance and filed his written statement on

17.04.2008. The petitioner has no interest in the case over a long

period of eight years. Finally the case was posted in the list on

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https://hcservices.ecourts.gov.in/hcservices/

CRP(MD)No.2893 of 2018

10.04.2015. Neither the plaintiff nor the counsel was present in the

case. Again the case was posted on 10.08.2015. The suit was

dismissed for default. Each day delay has to be explained and the

reasons stated in the petition are not valid reasons and prayed the

petition to be dismissed.

5.After hearing both sides, the trial Court dismissed the

petition. Against which, the revision petitioner has preferred this

revision.

6.On the side of the petitioner, it is stated that only due

to sudden illness and due to age factor, the petitioner was not able

to attend the Court on the date fixed for trial. If the suit is not

restored, the petitioner will be deprived of justice. The property

is inherited by the petitioner and the survey record of Trichy

Corporation stand in the name of the petitioner. Survey field

register stand in the name of the petitioner. The trial Court failed

to consider the encumbrance certificate. There is no malafide

intention on the side of the petitioner to drag on the proceedings.

There will be no prejudice to the defendant. The property is only a

vacant site. A lenient view has to be taken in allowing the delay

excuse petition. In support of this contention, a judgment passed by

this Court in the case of Nirmala Devi v. T.R.Rangasamy reported in

2017 3 CTC 445 is cited.

7.On the side of the respondent, it is stated that the reason

stated in the affidavit is only sudden illness and old age. There is

no document to prove the sudden illness and the description of the

illness, period of treatment, mode of treatment are not elicited in

the affidavit. Another reason stated in the petition is that the

affidavit and petition sent by the counsel was missing during the

transit. But in the affidavit, only 36 days was mentioned as days of

delay that means the affidavit was not misplaced