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Madras High CourtCRP/275/2012dismissed

K.M.Mohboopkhan v. A.M.Abdul Rasak,

2020-07-28Honourable Mr Justice P. Velmurugan3 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 28.07.2020 CORAM :

THE HONOURABLE MR. JUSTICE P. VELMURUGAN C.R.P.No.275 of 2012 1.K.M.Mahboopkhan 2.Samsath 3.M.Shanwaz 4.Adhiddon ..Petitioners/Respondent Vs.

1.A.M.Abdul Rasak 2.A.Abdul Kalam 3.S.Syed Ali Jakear 4.S.Syed Naseer Ahmed 5.A.Abdul Bari 6.Abndul Raseedh 7.Mahbool 8.John Basha Jawaheera 9.A.Kathar Sherif 10.A.A.Abeetha @ Jainath Beevi 11.Janab Abdul Azeez 12.Sabiya Begum 12.Mohammed Gous 13.Sheikh Ummar 14.Ayesha Siddiqkha ..Respondents PRAYER : Civil Revision Petition filed under Article 227 of the Constitution of India against the fair and decreetal order dated 22.11.2010 made in I.A.No.470 of 2006 in O.S.No.224 of 1999, on the file of the II Additional Sub Court, Coimbatore. For Petitioners :

Mr.Vinoth Raja For M/s.N.Manokaran For Respondents :

Mr.T.Balaji for R1 & R5

O R D E R

The petitioners are the plaintiffs and the respondents are the defendants in suit. The petitioners / plaintiffs have initiated the suit for specific performance in O.S.No.224 of 1999, on the file of II Additional Subordinate Judge,

Coimbatore. The said suit was dismissed for default. Thereafter, the petitioners filed I.A.No.470 of 2006 in O.S.No.224 of 1999 for restoration of the suit with a delay of 1199 days to condone the delay in filing restoration application. The said Application was dismissed by the trial Court. Challenging the same, the petitioners / plaintiffs are before this Court by way of this Civil Revision Petition.

2. The learned counsel for the petitioners / plaintiffs would submit that the petitioners filed the suit for specific performance against the respondents in the year 1999. Thereafter, due to ill-health of the first petitioner, they could not follow up the case and therefore, the suit was dismissed for default. Subsequently, they filed an Application for restoration and the Application was misplaced by the Officials, therefore, they filed the restoration Application with a delay of 1199 days. He would further submit that the petitioners have filed the documents to show that during the relevant period the first petitioner was in ill-health and therefore, he could not follow up the case. However, the learned trial Judge, without considering the facts, dismissed the Application, which warrants interference of this Court.

3. Per contra, the learned counsel for the respondents would submit that the learned Judge after considering the entire materials, held that the plaintiffs have not shown sufficient cause to restore the Application and rightly dismissed the Application and hence, prayed for dismissal of this Revision.

4. Heard the learned counsels on either side and perused the materials available on record.

5. Admittedly, the petitioners herein / plaintiffs filed the suit for specific performance in O.S.No.224 of 1999 on the file of II Additional Subordinate Judge, Coimbatore and the said suit was dismissed for default. Thereafter, the petitioners have filed the Application under Section 5 of the Limitation Act to condone the delay of 1199 days for non filing of the Application under Order 9 Rule 9 of CPC, which was dismissed for default on 05.07.2002. Though the suit was dismissed on 05.07.2002, the petitioners have filed restoration Application with a delay of 1199 days. Though the petitioners have mainly contended that the first petitioner is ill-health and it could be seen that there are three plaintiffs in the suit and only one plaintiff is ill health and there is no averment with regard to health condition of the other plaintiffs.

When the suit is filed, the parties should be vigilant to follow up the case by contacting counsels and even one of the plaintiffs is ill health, the other plaintiffs should have followed the status of the case.

and the plaintiffs have to prove ready and willing to perform the contract from the date of agreement. It is made clear, the petitioners / plaintiffs have not follow-up the suit for about 1199 days, which shows the lethargic attitude of the plaintiffs. Therefore, under the circumstances, this Court is of the view that affidavit filed by the petitioners is not satisfactory and the trial Court has rightly dismissed the Application. Therefore, there is no merit in the Civil Revision Petition, accordingly, the Civil Revision Petition fails and the same is dismissed. However, there shall be no order as to costs. Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar r n s To The II Additional Sub Court, Coimbatore.

+1cc to Mr.N.Manokaran, Advocate, S.R.No.25583 C.R.P.No.275 of 2012 BS(CO) KKV/17/08/2020