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Madras High CourtCRP/282/2014allowed

Ponnusamy v. Athayammal

2016-12-08Honourable Mr Justice S.M. Subramaniam5 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 08.12.2016

CORAM:

THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM C.R.P(PD)No.282 of 2014 and M.P.No.1 of 2014

1. Ponnusamy

2. Ramasamy .. Petitioners Vs.

1. Athayammal

2. Papathi .. Respondents Civil Revision Petition filed under Article 227 of the Constitution of India against the fair and final order dated 13.11.2013 made in I.A.No.409 of 2013 in I.A.No.591 of 2010 in O.S.No.97 of 2010 on the file of the Sub Court, Perundurai. For Petitioners : Mr.Ma.P.Thagavel For Respondents 1 & 2 : Mr.N.Manokaran

ORDER

The present Civil Revision Petition is filed challenging the order passed in I.A.No.409 of 2013 in I.A.No.591 of 2010 in O.S.No.97 of 2010. The petitioners are the defendants 1 and 2 in O.S.No.97 of 2010 which was filed by the respondents/plaintiffs. The respondents filed the above suit for partition and defendants 1 and 2 were set ex-parte by the Trial Court, by order, dated 18.06.2010.

2. The learned counsel appearing for the petitioners submitted that the petitioners/defendants 1 and 2 filed the petition to set aside the ex-parte order in I.A.No.591 of 2010 and the same was allowed by recording no objection by the other side on 29.10.2010. The said petition was allowed with a condition to pay a sum of Rs.750/- as cost on or before 21.12.2010 and the case was listed on 22.12.2010. The learned counsel for the petitioner contended that on 22.12.2010 there was boycott of advocates in the Trial Court and therefore, the petitioner was not aware of the compliance of the conditional order by his counsel before the Trial Court. Consequently the petition was dismissed automatically. Subsequently, the petitioner filed another petition in I.A.No.409 of 2013 seeking extension of time to comply with the order passed in I.A.No.

591 of 2010. The contention of the petitioner is that the petitioner had no objection even at the initial stage to set aside the ex-parte order inspite of that the trial Court rejected the petition on the ground that the earlier petition filed in I.A.No.591 of 2010 was dismissed on account of non-compliance of the payment of cost and therefore, the present petition seeking extension of time need not be entertained.

Petition is filed.

3. Learned counsel for the respondents opposed the revision by stating that the petitioner deserves no consideration, in view of the fact that the order of restoration on condition to pay the cost was not complied with by the petitioner and further the petitioner has not proved any compliance of the order passed by the trial court in I.A.No.591 of 2010. Therefore, the present petition deserves to be dismissed.

4. Considering the rival contentions both by the counsel for petitioners and respondents, this Court of the opinion that no suit shall be dismissed without adjudication. The parties are to be given reasonable opportunity to defend the suit and logical conclusion has to be arrived at, after a full fledged trial. In the case on hand, it is true that the petitioners had not complied with the conditional order passed in I.A.No.591 of 2010. But the reason stated was that there was boycott of advocates in the Trial Court and therefore, the petitioner was not aware of the compliance of the conditional order by his counsel before the Trial Court. Therefore, it is not the fault of the petitioners and it is the fault of the counsel before the Trial Court. This Court is of the view that due to the above said fact, the party should not suffer. Since it is the suit for

partition, involving the right of the petitioners. Accordingly, the present Civil Revision Petition deserves consideration and the order passed in I.A.No.409 of 2013 in I.A.No.591 of 2010 in O.S.No.97 of 2010 dated 13.11.2013 is set aside and the petitioners are directed to comply with the order in I.A.No.591 of 2010 within a period of two weeks from the date of receipt of a copy of this order. Civil Revision Petition is allowed.

5. The learned counsel both for petitioners and respondents jointly represented that this suit is of the year 2010 and one way or the other, the suit is prolonged on flimsy grounds and that the parties are ready to co-operate for the early disposal of the suit. Considering the respective submission made by the counsel, this Court is inclined to direct the trial Court to take up the suit for trial as early as possible and dispose of the same preferably within a period of six months from the date of receipt of copy of this order. Consequently connected miscellaneous petition is closed. No costs. 08.12.2016 Index : Yes/No Internet : Yes/No adl To

Sub Court, Perundurai.

S.M.SUBRAMANIAM, J.

adl C.R.P(PD)No.282 of 2014 and M.P.No.1 of 2014 08.12.2016 http://www.judis.nic.in