The order passed in I.A.No.236 of 2006 in A.S.SR.No.6909 of 2006 on the file of the Principal District Judge, Coimbatore, is under challenge in this Revision. I.A.No.236 of 2006 was filed by the plaintiff in O.S.No.223 of 2002 / Revision Petitioner herein to condone the delay of 859 days in preferring an appeal against the decree and Judgment in O.S.No.223 of 2002 on the file of the Subordinate Judge, Tiruppur.
2.Heard the learned counsel for the revision petitioner as well as the learned counsel for the respondents and considered their respective submissions. According to the learned counsel for the Revision Petitioner, the suit O.S.No.223 of 2002 was posted before the learned Subordinate Judge, Tiruppur for trial in the list on 05.09.2003, on the date of hearing the plaintiffs' counsel was present and he had represented on behalf of the plaintiffs, but D1 to D4 were absent and they were set exparte. Thereafter, the learned Trial Judge has examined P.W.1. The learned counsel for the revision petitioners would state that some documents were also marked on behalf of the plaintiffs. But instead of passing a decree in favour of the plaintiffs the learned trial Judge has dismissed the suit, against which he had preferred the appeal before the first appellate Court alongwith a petition under Section 5 of the Limitation Act to condone the delay of 859 days in preferring the appeal.
3.In the affidavit to the petition in I.A.No.236 of 2006 valid reasons have been given by the revision petitioner herein but the same were not taken into consideration by the learned first appellate Judge. A reading of the affidavit to the petition in I.A.No.236 of 2006 would go to show that the first petitioner -Loganayaki is a senior citizen and she was suffering from jaundice and took sidha treatment at Palakat, Kerala for a long time and the 2nd petitioner is a minor represented by mother and guardian the 3rd petitioner Lathamani, who is a widow and is not aware of the suit proceedings and that only in February-2006, the petitioners' advocate had informed about the disposal of the suit and immediately they have preferred the appeal against the decree and Judgment in O.S.No.223 of 2003 before the Principal District Judge, Coimbatore along with a petition under Section 5 of the Limitation Act to condone the delay of 859 days in preferring the appeal. The learned first appellate Judge has dismissed the section 5 application on the ground that there was no medical evidence produced by the petitioners to show that the first petitioner was ill and she was taking treatment at Palakat for jaundice under a Sidha Doctor. The important point to be taken note of in this revision is that in respect of the defendants being remained exparte, the trial Court has dismissed the suit. Under such circumstances, I am of the view that an opportunity must be given to the revision petitioners to put forth their case in appeal.
4.In fine, the Revision is allowed and the order passed in I.A.No.236 of 2006 in A.S.SR.No.6909 of 2006 on the file of the Principal District Judge, Coimbatore, is set aside and the First Appellate Judge is directed to number the appeal preferred by the revision petitioner and to dispose of the same within three months from the date of numbering the appeal in accordance with law. Connected Miscellaneous Petition is closed. No costs.
ssv To,
1.The Principal District Judge, Coimbatore.
2.The Subordinate Judge, Tiruppur