Dismissed

Alagar, S/O.Mari, v. Chellachamy, S/O.Ponnuthevar

Madras HC10 Oct 2011CRP(MD)/1676/2011

Case brief

AI extract

What is this about?

The High Court dismissed a Civil Revision Petition challenging an order that refused to condone a delay of 1339 days. The petitioner failed to establish genuine grounds for delay as his testimony contradicted reasons stated in the application, leading the Court to uphold the lower court's dismissal.

What did the court decide?

The Civil Revision Petition was dismissed without costs, and the impugned order of the District Munsif Court was confirmed.

Alagar, S/O.Mari, Vs Chellachamy, S/O.Ponnuthevar — Execution and Attachment | Madras HC (2011)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :10.10.2011 CORAM

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THE HONOURABLE MR.JUSTICE A.SELVAM C.R.P(NPD)(MD)No.1676 of 2011 and M.P(MD)No.1 of 2011

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Alagar ..Petitioner/Defendant/Petitioner

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Vs.

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Chellachamy ..Respondent/Plaintiff/Respondent

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Civil Revision Petition has been filed under Article 227 of the Constitution of India against the fair and decreetal order dated 29.07.2011 passed in I.A.No.198 of 2009 in O.S.No.276 of 2004 by the District Munsif Court, Thirumangalam dismissing the petition to restore the petition under Section 5 of the Limitation Act.

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For Petitioner : Mr.A.Shahul Hameed For Respondent : Mr.K.HemaKarthikeyan

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ORDER

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The order dated 29.07.2011 passed in I.A.No.198 of 2009 in O.S.No.276 of 2004 by the District Munsif Court, Tirumangalam is being challenged in the present Civil Revision Petition.

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The respondent herein as plaintiff has instituted O.S.No.276 of 2004 on the file of the Court below praying to pass a money decree, wherein the present revision petitioner has been shown as sole defendant. In O.S.No.276 of 2004 an ex-parte decree has been passed on 16.06.2005 and in filing a petition for setting aside the same, there is a delay of 1339 days and in order to condone the same, the present petition has been filed under Section 5 of the Limitation Act. The Court below after considering the rival contentions raised on either side, has dismissed the petition. Against the dismissal order, the present Civil Revision Petition has been filed.

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The learned counsel appearing for the revision petitioner/petitioner has contended that there is no nexus in between the revision petitioner and respondent with regard to the money dealings mentioned in the plaint filed in O.S.No.276 of 2004 and during the relevant period, the petitioner has suffered from jaundice and due to that he has not been able to attend the Court and further for a period of three years the petitioner has lived in Andhrapradesh, so as to eke out his livelihood and under the said circumstances the delay mentioned in the petition has occurred and in order to establish the reasons given in the petition, the petitioner has been examined as P.W.1 and the Court below without considering the reasons stated in the petition and also the evidence given by P.W.1, has erroneously dismissed I.A.No.198 of 2009 and therefore, the dismissal order passed by the Court below is liable to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 4. In support of his contention, the learned counsel appearing for the revision petitioner, has drawn the attention of this Court to the

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following decisions:

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(A) In N.Balakrishnan vs. M.Krishnamurthy reported in (1998) 7 SCC 123, the Honourable Apex Court has held that sufficient cause should be construed liberally.

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(B) In Krishnamoorthy vs. Parasuraman and Others reported in (2007) 3 MLJ 636 , wherein this Court has held that the Court is bound to adjudicate the dispute between the parties to advance substantial justice.

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The learned counsel appearing for the respondent/plaintiff has contended that in the petition, two reasons have been mentioned for condoning the huge delay of 1339 days and even though the petitioner has been examined as P.W.1 and his evidence is nothing but rickety and the Court below after considering the nature of evidence given by the petitioner, has rightly dismissed the petition and therefore the order passed by the Court below need not be interfered with.

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As pointed out earlier, the respondent as plaintiff has instituted O.S.No.276 of 2004, wherein the revision petitioner has been shown as sole defendant. In O.S.No.276 of 2004 an executable ex-parte decree has been passed. In the present petition, two reasons have been given by the revision petitioner for not making his appearance in O.S.No.276 of 2004. The first and foremost reason is that due to jaundice he has not been able to move out and due to that he has not been able to appear before the Court. The second reason is that in order to eke out his livelihood he gone to Andhrapradesh and lived there for three years.

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On the side of the petitioner, the petitioner has been examined as P.W.1 and his specific evidence during the course of crossexamination is that for getting treatment he has gone to a village near Poonthamalli. In the petition it has been clearly stated that due to jaundice he has not been able to move out and due to that he has not been able to attend the Court. Under the said circumstances, the delay mentioned in the petition has occurred. But as stated earlier, the petitioner has given totally contra evidence to the facts mentioned in the petition. Therefore, it is quite clear that the petitioner has not filed the present petition on the basis of genuine reasons. Considering the fact that the petitioner has given a contra evidence to the facts mentioned in the petition, it is needless to say that the reasons given in the petition are not genuine. Since the reasons given in the petition are not genuine, the same is liable to be dismissed.

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As per the dictum given by the Honourable Apex Court sufficient cause should be liberally construed. But in the present case, even as per the evidence of the petitioner it is easily discernible that all the reasons given in the petition are not genuine. Since the reasons given in the petition are not genuine it is very clear that the petitioner has approached the Court with false and frivolous grounds and therefore, the petitioner is not entitle to get equity. The Court below after considering all the contentions raised on either side has rightly https://hcservices.ecourts.gov.in/hcservices/ dismissed the petition.

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In view of the discussion made earlier, this Court has not found any reason to interfere with the well-merited order passed by the Court below and altogether the present Civil Revision Petition deserves to be dismissed.

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In fine, this Civil Revision Petition deserves dismissal and accordingly is dismissed without costs and the order dated 29.07.2011 passed in I.A.No.198 of 2009 in O.S.No.276 of 2004 by the District Munsif Court, Tirumangalam, is confirmed. Consequently, connected miscellaneous petition is closed.

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Sd/-

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Assistant Registrar (C.O)

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/True Copy/

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Sub Assistant Registrar (C.S)

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The District Munsif,

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Thirumangalam, Madurai District.

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1 cc to Mr.K.Hemakarthikeyan, Advocate, SR No.35044

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C.R.P(NPD)(MD)No.1676 of 2011

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10.10.2011

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pm RJ/2.11.11 3p/3c

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https://hcservices.ecourts.gov.in/hcservices/

Alagar, S/O.Mari, v. Chellachamy, S/O.Ponnuthevar

Case brief

What is this about?

What did the court decide?

Alagar, S/O.Mari, v. Chellachamy, S/O.Ponnuthevar

Case brief

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What did the court decide?

What the court decided

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