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Madras High CourtCRP/2657/2016dismissed

Sujathamma v. Suseelamma

2016-09-01Honourable Mr Justice M.Duraiswamy4 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 01.09.2016

CORAM:

THE HONOURABLE MR.JUSTICE M.DURAISWAMY C.R.P.(NPD).No.2657 of 2016 Sujathamma ... Petitioner Vs.

Suseelamma ... Respondent Civil Revision Petition filed under Section 115 of the Civil Procedure Code against the judgment and decree dated 09.04.2015 made in I.A.No.312 of 2013 in O.S.No.44 of 2006 on the file of the Subordinate Court, Hosur. For Petitioner : Mr.T.Srikrishna Bhagavat For Respondent : Mr.R.Jayaprakash

O R D E R

Challenging the fair and final order passed in I.A.No.312 of 2013 in O.S.No.44 of 2006 on the file of the Subordinate Court, Hosur, the plaintiff has filed the above Civil Revision Petition.

2.The plaintiff filed the suit in O.S.No.44 of 2006 for partition and separate possession.

3.Since the plaintiff failed to appear before the trial Court on 04.12.2009, the suit was dismissed for non-prosecution. Thereafter, the plaintiff filed an application in I.A.No.312 of 2013 to condone the delay of 463

days in filing the application to restore the suit. In the affidavit filed in support of the petition, the plaintiff has blamed her counsel for his nonappearance on 04.12.2009. 4.It is also pertinent to note that the application has been filed on the third occasion and previously, the suit was dismissed for non-prosecution on two occasions (i.e.) 18.06.2008 and on 24.02.2009. When the suit was dismissed for non-prosecution on 18.06.2008, at the instance of the plaintiff, the suit was restored to file on 03.12.2008. Thereafter, when the suit was dismissed for default on 24.02.2009, the plaintiff filed an application in I.A.No.134 of 2009, which was allowed on 11.09.2009. Subsequently, on 04.12.2009 also the plaintiff remained absent, hence, the suit was dismissed for non-prosecution on 04.12.2009.

Now, after a delay of 463 days, the present application has been filed by the plaintiff to restore the suit. As already stated, the plaintiff has blamed her counsel for his non-appearance on 04.12.2009. In the affidavit filed in support of the petition, the plaintiff has not even mentioned her counsel's name.

5.The ratio laid down by the Hon'ble Supreme Court in (2015) 1 Supreme Court Cases 680 [H.Dohil Constructions Company Private Limited Vs. Nahar Exports Limited and another] squarely applies to the facts and circumstances of the present case.

6.In the absence of sufficient cause shown by the plaintiff, the delay cannot be condoned. The plaintiff cannot blame her counsel and keep quite for 463 days for filing an application to restore the suit. In the absence of sufficient reason given by the plaintiff to restore the suit, the trial Court has rightly dismissed the application.

7.In these circumstances, I do not find any error or irregularity in the order passed by the Executing Court. The Civil Revision Petition is devoid of merits and is liable to be dismissed. Accordingly, the Civil Revision Petition is dismissed.

8.The learned counsel appearing for the petitioner submitted that liberty may be given to the plaintiff to file a fresh suit for partition. 9.In view of the submission made by the learned counsel, it is open to the plaintiff to file a fresh suit for partition in accordance with law. No costs. Consequently, the connected miscellaneous petition is closed. Index : No 01.09.2016 Internet : Yes va

M.DURAISWAMY,J.

va To The Subordinate Court, Hosur.

C.R.P.(NPD).No.2657 of 2016 01.09.2016