IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.08.2017
C O R A M
THE HONOURABLE MR.JUSTICE M. GOVINDARAJ C.R.P.(NPD) No.2786 of 2014 and
M.P.No.1 of 2014
1. Palanichamy(Deceased)
2. P. Dhandapani, S/o. Late Palanichamy (2nd petitioner brought on LRS of the deceased sole petitioner vide Order of court dated 28.01.2016 made in MP.No.3 of 2015 in CRP.No.2786 of 2014) ... Petitioner Vs.
1. Lalithambal
2. Raju @ Muthugopalakrishnan
3. Senthil
4. Babu @ Ganesh Balaji ... Respondents PRAYER: Civil Revision Petition filed under section 115 of Civil Procedure Code, to set aside the fair and final Order dated 19.09.2013 made in I.A.No.85 of 2012 (I.A.No.694/2011) in C.M.A.C.F.R.No.16139/2011 on the file of Principal District Judge of Tiruppur and thereby allow the above Civil Revision Petition.
For Petitioner : Mrs.R.Gouri For Respondent : Mr.S.K. Govi Ganesan for R1 to R4 O R D E R The present Civil Revision Petition is filed by the plaintiff/petitioner. The suit is filed for specific performance in the year 1995 and it was dismissed for default on 06.07.2009. Thereafter the plaintiff/petitioner filed I.A.No.522 of 2009 for restoration and the same was dismissed on 16.02.2010. As against the said order petitioner/plaintiff filed the Civil Revision Petition before the High Court and the same was returned for represention before the concerned Court by preferring an appeal. After taking return, the petitioner has filed Civil Miscellaneous Appeal before the Principal District Court, Coimbatore with an application to condone the delay of 298 days. The Court has dismissed the condone delay petition for the reasons that the delay is not acceptable and there is no sufficient cause. Aggrieved by the dismissal of the petition in I.A.No.85 of 2012 dated 19.09.2013 to condone the delay in filing the Civil Miscellaneous Appeal, the present Civil Revision Petition was filed.
2. Learned counsel appearing for the respondents stated that conduct of the petitioner in allowing the matter to be dismissed for default by itself shows that the petitioner is not interested in prosecuting the case. At the first instance, the suit was dismissed for default in 2000 and the same was restored on 18.04.2009. Thereafter it was again allowed to dismissed on 06.07.2009. Against the said order the petitioner should have preferred an appeal without preferring Civil Revision Petition. However the petitioner has filed an I.A. for condoning the delay of 298 days in filing an appeal before the District Court which by itself would show that the plaintiff/petitioner has deliberately defaulted and this matter has not come out without sufficient reason to condone delay.
3. Per contra, learned counsel appearing for the petitioner would submit that she has filed the Civil Revision Petition on bonafide impression that only revision is maintainable. The Civil Revision Petition was returned on 15.09.2010 with a direction to file an appeal before appropriate forum. The delay in filing an appeal before the Lower Appellate Court shall be condoned. The Lower Appellate Court has not considered the issue on merits and dismissed the condone delay petition.
4. On the perusal of the pleadings and submissions made by either party, it would be seen that the delay was caused due to approaching the wrong forum by the petitioner. The respondent has taken a definite stand that the plaintiff has sold the property already and therefore nothing survives in this petition.
5. The learned counsel for the petitioner submits that the petitioner has taken steps to implead the subsequent purchaser and she is entitled to return of an advance loan and damages, even if he fails to succeed in the suit. Instead of rejecting the claim of the plaintiff a technicalities, it is always better to decide the matter on merits considering the facts and circumstances of the case. The Court is of the considered opinion that the delay of 298 days in preferring the appeal has to be condoned to render substantial justice by imposing compensatory costs on the petitioner.
6. Accordingly, the Civil Revision Petition is allowed and the order passed by the lower Court in I.A.No.85 of 2012 dated 19.09.2013 is set aside on payment of cost of Rs.10,000/- to the respondents herein. The petitioner shall remit the payment directly to the respondents within a period of four weeks from the date of receipt of a copy of this order.
7. With these observations the Civil Revision Petition is dismissed.
Consequently connected M.P.No.1 of 2014 is closed.
01.08.2017
Index : Yes/No Internet : Yes/No rpl To The Principal District Judge, Tiruppur M.GOVINDARAJ,J.
rpl C.R.P.(NPD) No.2786 of 2014 and M.P.No.1 of 2014
01.08.2017
M.GOVINDARAJ,J.
rpl C.R.P.(NPD) No.2786 of 2014 and M.P.No.1 of 2014
01.08.2017