Malarkodi v. Ayyasamy
Case brief
What is this about?
The High Court set aside the trial court's order allowing a belated application to restore a suit dismissed for default, criticizing the condonation of an 851-day delay as mechanically passed based on contradictory affidavits.
What did the court decide?
The impugned order of the learned Additional Subordinate Judge allowing the application under Section 5 of the Limitation Act is set aside.
What the court decided
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.11.2019
CORAM:
THE HONOURABLE Mr.JUSTICE R.SURESH KUMAR
C.R.P.(NPD) No.3243 of 2019 and C.M.P.No.21120 of 2019
Malarkodi ... Petitioner Vs. Ayyasamy ... Respondent
Prayer: Petition filed under Section 115 of the Code of Civil Procedure praying to set aside the orders of the learned I Additional Subordinate Judge at Coimbatore dated 04.04.2019 in I.A.No.1262 of 2017 in O.S.No.748 of 2012.
For Petitioner : Mr.V.Nicholas For Respondent : Mr.G.Karthikeyan ORDER
This revision petition has been filed against the fair and decretal order passed in I.A.No.1262 of 2017 in O.S.No.748 of 2012 by the I Additional Subordinate Judge, Coimbatore, by order dated 04.04.2019.
2.Before the trial Court, the respondent/plaintiff filed a suit for recovery of money. The said suit, according to the respondent/plaintiff, was posted for hearing on 13.04.2015, as informed by his counsel, therefore, the respondent/plaintiff thought of appearing before the Court on 13.04.2015. However, the case actually was posted on 06.03.2015. On that date, since there was no representation on behalf of the plaintiff, the suit was dismissed for default and in order to restore the suit, which was dismissed for default on 06.03.2015, necessary petition was filed with a very huge delay of 851 days. In order to condone the same, application under Section 5 of the Limitation Act was filed i.e., the present application in I.A.No.1262 of 2017 and the said application since has been allowed by the trial Court, aggrieved over the same, the present revision petitioner, who is the defendant in the suit, filed the present revision petition.
Issues for consideration
2 issues framed by the court
Whether an order condoning a delay of 851 days in filing an application to restore a suit dismissed for default was mechanically passed and erroneous.
Whether the trial court's allowance of the restoration application violates the conditions of Section 5 of the Limitation Act.
Parties & counsel
- petitioner
Malarkodi
- respondent
Ayyasamy
Coram
R.Suresh Kumar
Case details
As recorded by the court registry
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