Allowed

Minor Kameswaran v. Kuppammal

Madras HC2 Jan 2020CRP/1743/2019

Case brief

AI extract

What is this about?

The High Court allowed a Civil Revision Petition under Article 227. It set aside the trial court's order dismissing an application to restore a suit dismissed for default and directed an order dismissing a default suit, which was necessary to allow the plaintiff to be restored is maintainable and the restoration petition to declare him major before filing the application is permissible once he bec

What did the court decide?

Civil Revision Petition allowed; order of trial court set aside; suit restored; trial to be completed within three months.

Minor Kameswaran Vs Kuppammal — Property and Title | Madras HC (2020)

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C.R.P.(NPD) No.1743 of 2019

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 02.01.2020

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CORAM:

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THE HON'BLE MR.JUSTICE V.BHARATHIDASAN

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C.R.P(NPD).No.1743 of 2019 Minor Kameswaran ... Petitioner Vs. 1. Kuppammal 2. Selvi ... Respondents PRAYER : Civil Revision Petition filed under Article 227 of the Constitution of India to set aside the order dated 18.03.2019 passed in I.A.No.1082 of 2018 in O.S.No.172 of 2013 on the file of the District Munsif Court, Sangarapuram, dismissing the petition filed under Order 9 Rule 9 CPC.

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http://www.judis.nic.in

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C.R.P.(NPD) No.1743 of 2019

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For Petitioner : Mr. E. Vijay Anand

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For respondents : Mr. V.Manohar, for R2 : No appearance, for R1

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O R D E R

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This Civil Revision Petition has been filed against the order dismissing the petitioner's application filed under Order 9 Rule 9 CPC to restore the suit.

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The petitioner herein filed a suit in O.S.No.172 of

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2013 on the file of the District Munsif Court, Sankarapuram, for declaration and also for consequential injunction restraining the defendant from interfering with the petitioner's possession and enjoyment of the suit property and the said suit came to be dismissed for non appearance of the petitioner/plaintiff on 02.02.2018. Thereafter, the petitioner had filed an application in I.A.No.1082 of 2018 under Order 9 Rule 9 CPC to restore the suit

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C.R.P.(NPD) No.1743 of 2019

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and the same was dismissed by the learned Judge on 18.03.2019. Now, challenging the same, the present revision has been filed.

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The learned counsel for the petitioner would submit that the suit was filed in the year 2013 and the petitioner has been continuously appearing in the suit, on 02.02.2018 the suit was posted for hearing, but the date of hearing was not informed by the counsel to the petitioner. Hence, he could not appear before the trial Court and he was called absent and the suit was dismissed for default on 02.02.2018. Immediately, on 09.02.2018 the petitioner has filed an application to restore the suit, but the trial Court dismissed the same.

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The learned counsel for the second respondent would submit that the petitioner has deliberately failed to appear before the trial court and hence the suit was dismissed for default. But, the petitioner filed the application to restore the

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http://www.judis.nic.in

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C.R.P.(NPD) No.1743 of 2019

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suit only on 03.04.2018 without filing any application to condone the delay. That apart, on filing the application, the petitioner has become major and without filing any application to declare him as

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Major, the suit has been conducted by the guardian.

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I have considered the submissions made on either

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side and perused the materials available on records carefully.

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From the perusal of the records, it could be seen that the suit is pending from the year 2013 and the matter was posted for trial on 02.02.2018. According to the petitioner, since the date of hearing was not informed by the counsel, he could not appeared on 02.02.2018. From the records, it could also be seen that he has filed an application on 09.02.2018 within a period of one week . Thereafter, the application has been returned for certain compliance and it was represented on 03.04.2018. Hence, the contention of the respondent that the application was filed only on 03.04.2018 is not correct. From the affidavit filed

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C.R.P.(NPD) No.1743 of 2019

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by the petitioner, it could be seen that, there is no malafide intention on the part of the petitioner to drag on the proceedings and the application to restore the suit has also been filed within a period of one week from the date of dismissal of the suit. The trial Court without considering the said aspects has erroneously dismissed the application.

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So far as the next ground stated by the trial Court that

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earlier, the petitioner has filed suit as minor, but, on the date of filing the application, he has become major and without filing any application to declare him as major to conduct the suit, the application to restore the suit was filed only by his guardian and hence, the application is not maintainable. Even assuming that the petitioner/plaintiff has become major, non filing of application

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to declare him as a major cannot be a ground to dismiss the application to restore the suit, which was dismissed for default . Unless the suit is restored, the petitioner cannot file application to declare him as major. Hence, on that reason, the application cannot be dismissed.

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C.R.P.(NPD) No.1743 of 2019

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In the result, the Civil Revision Petition is allowed

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and the order passed by the trial Court is set aside and the suit is restored on file. No costs. Since the suit is pending from the year 2013, the trial Court is directed to proceed with the trial and dispose the same within a period of three(3) months from the date of receipt of a copy of this order.

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02.01.2020
Index:Yes/No
Internet:Yes
Speaking/Non-speaking order
mrp
Note:Issue order copy on 30.01.2020
To
The District Munsif Court,
Sangarapuram.

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C.R.P.(NPD) No.1743 of 2019

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V.BHARATHIDASAN, J

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mrp

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C.R.P.(NPD) No.1743 of 2019
02.01.2020

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Minor Kameswaran v. Kuppammal

Case brief

What is this about?

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Minor Kameswaran v. Kuppammal

Case brief

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