The Civil Revision Petition has been filed against the fair and decreetal order dated 21.10.2002 made in I.A.No.103 of 2001 in A.S.No.64 of 1996 on the file of the Subordinate Judge, Periyakulam.
2. The parties are referred to as per the rank arrayed in the present Civil Revision Petition.
3. The case of the petitioner is that the respondents herein had filed a suit in O.S.No.361 of 1991, on the file of District Munsif, Periyakulam for declaration and recovery of possession and the suit was resisted by the petitioner inter alia stating that the respondents are not entitled to the suit property and prayed for the dismissal of the suit The learned District Munsif, by judgement and decree dated 16.4.1996, decreed the suit as prayed for by the respondents herein. Aggrieved by the same, the petitioner filed an appeal in A.S.No.64 of 1996 on the file of Sub Court, Periyakulam and the said appeal was posted for hearing on 23.7.2001 and as the petitioner could not attend the court to instruct his advocate on account of the fact that he was suffering from knee pain (arthritis), his counsel had withdrawn his appearance and the appeal was dismissed 'for default' 23.7.2001. On coming to know of the dismissal of the appeal 'for default', the petitioner filed an application in I.A.No.103 of 2001, seeking to restore the appeal on file and to dispose of the same on merits. The petitioner was examined as P.W.I and he gave evidence to substantiate his claim that he was suffering from arthritis. However, the learned Subordinate Judge without appreciating the facts and law, in a prospective manner, had dismissed the said application. Aggrieved over the same, the petitioner has filed the afove-said revision petition.
4. Mr.Vallinayagam, learned Senior Counsel appearing for the respondents would contend that in an earlier round of litigation, the petitioner had allowed the appeal suit to be dismissed and filed a restoration application which was allowed on 04.12.2000 and at that point of time, the respondents herein gave no objection for allowing the petition filed by the petitioner, even without any costs and accordingly, the appeal was restored on file and it is the second time that when the matter was posted for arguments, the petitioner again left the case for dismissal and the learned Counsel appearing for the petitioner reported ?no instructions? and consequently, the petitioner had allowed the appeal to be dismissed 'for default' and again sought for restoration of the appeal stating the very same reasons which he had stated as reason for setting aside the ex parte order earlier. More importantly, it is not the case of the petitioner that the matter was posted for any witness to be examined for adducing any evidence for which the petitioner's presence was necessary and it was only posted for argument and though the petitioner had contended and raised so many points stating that there is no bar for filing the second application, there was no specific denial nor valid reason adduced by the petitioner with supporting documents for setting aside the ex parte order passed in the appeal. But the fact remained that the petitioner, by his act has dragged on the case for nearly fifteen years. Further, the suit is of the year 1991 and till today, the finality has not been able to reach in the above matter due to the attitude of the petitioner. It is the further contention of the respondents that the petitioner has been squatting over the property of the respondents by earning a sum of Rs.2,50,000/ as yearly rent from the property by leasing it out to the third parties without paying any penny to the respondents herein.
5. However, after elaborate arguments by both parties, it was suggested by this Court that as the issued involved in this Civil Revision Petition is with regard to title dispute and though the respondents would vehemently oppose for setting aside the order in dismissing the application for restoration of the appeal, finally both the parties agreed that to meet the ends of justice and in order to give quietus to this issue, this Civil Revision Petition could be allowed on terms and a specific date can be fixed for completion of the appeal without dragging on the matter further.
6. Accordingly, on the afore-stated facts and circumstances of the case, without adverting into the merits of the case, the petitioner is directed to pay the costs of Rs.40,000/- (Rupees Forty Thousand) to the respondents within a period of four weeks from the date of receipt of a copy of this order, failing which, the Civil Revision Petition shall stand automatically dismissed without any further reference to this Court. On payment of the cost to the respondents, the Court below is directed to dispose of the appeal itself within a further period of four weeks from the date of making payment by the petitioner to the respondents. As already stated earlier, failure to comply with the condition of payment of cost, would result in dismissal of the Civil Revision Petition.
7. This Civil Revision Petition is disposed of, on the above terms. No costs. Consequently, connected miscellaneous petition is closed.
To (1)The Subordinate Judge, Periyakulam.
(2)The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai.
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