Dismissed¶34

Sakthivel(died) v. Arumugam

Madras HC20 Feb 2025CRP(MD)/93/2021

Case brief

AI extract

What is this about?

Condonation of delay; restoration of suit dismissed for default; 421 days delay; habitual default by plaintiff; third dismissal for default; Section 115 Civil Procedure Code; civil revision petition; O.S.No.167 of 2008; I.A.No.1 of 2019; District Munsif Court Aundipatti; Theni District; permanent injunction suit; Madurai Bench of Madras High Court; R. Vijayakumar J.; revision dismissed, no costs.

What did the court decide?

None to the petitioners; the Civil Revision Petition is dismissed with no order as to costs. Separately, the Registry is directed to delete the endorsement in the cause title that the first respondent is dead. ¶34

Sakthivel(died) Vs Arumugam — Madras HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

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Issue for consideration

Whether this Court should interfere, in exercise of jurisdiction under Section 115 of the Civil Procedure Code, with the trial Court's order dismissing I.A.No.1 of 2019 seeking condonation of 421 days' delay in filing an application to restore O.S.No.167 of 2008.

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Court's answer

The reasons in the affidavit are not convincing because they disclose no reason for the delay after 02.02.2018; it is the third time the suit has been dismissed for default and the suit is of the year 2008; therefore this Court finds no reason to interfere with the trial Court's order dismissing the condonation application.

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Ratio / Principle

It is represented that the first respondent is alive; the Registry is directed to delete the endorsement in the cause title that the first respondent is dead.

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Detailed headnote1 paragraphs

Madras High Court, Madurai Bench (R. Vijayakumar, J.) — C.R.P(NPD)(MD)No.93 of 2021, decided 20.02.2025: dismissed. The plaintiffs in O.S.No.167 of 2008 (District Munsif Court, Aundipatti), a suit for permanent injunction, challenged the trial Court's order dated 03.02.2020 dismissing I.A.No.1 of 2019, by which they sought condonation of 421 days' delay in filing an application to restore the suit dismissed for default on 02.02.2018. The affidavit pleaded viral fever of the first plaintiff on the date of default but gave no reason for the ensuing 421-day delay; the trial Court had recorded that the suit had already been twice dismissed for default (05.08.2010 and 28.03.2011) and restored, and that the plaintiff was in the habit of leaving the suit for default. Holding the explanation unconvincing and noting the suit was of the year 2008 and this was the third default, the High Court declined to interfere under Section 115 CPC and dismissed the revision petition with no order as to costs. The Registry was directed to delete the cause-title endorsement recording the first respondent as dead.

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C.R..P.(NPD)(MD).No.93 of 2021

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED : 20.02.2025

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CORAM:

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THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR

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C.R.P(NPD)(MD)No.93 of 2021

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Sakthivel

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Anandan ... Petitioners/Petitioners/ Plaintiffs

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Chitra

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... Proposed Petitioner

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(3^rd Petitioner is brought on record as LR of the first petitioner vide order of this Court dated 16.12.2024 made in C.M.P(MD) Nos.17668 to 17670 of 2024 in C.R.P(MD) No.93 of 2021)

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Vs.

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Arumugam ... Respondent/Respondent/ Defendant

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PRAYER: Civil Revision Petition filed under Section 115 of Civil Procedure Code, against the Executable order and fair order, dated 03.02.2020 made in I.A.No.01 of 2019 in O.S.No.167 of 2008 on the file of the District Munsif Court, Aundipatti.

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For Petitioners : Mr.R.Suriyanarayanan

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For Respondent : Mr.R.Rajaraman

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https://www.mhc.tn.gov.in/judis

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C.R..P.(NPD)(MD).No.93 of 2021

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O R D E R

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It is represented that the first respondent is alive. The Registry is directed to delete the endorsement in the cause title that the first respondent is dead.

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2. The plaintiffs in O.S.No.167 of 2008 on the file of the District Munsif Court, Aundipatti, Theni District, is the revision petitioners herein.

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3. The said suit has been filed for the relief of permanent injunction restraining the defendant from interfering the possession of the plaintiffs. The suit was dismissed for default for the non-appearance of the plaintiffs on 02.02.2018. The plaintiffs have filed I.A.No.1 of 2019 to condone the delay of 421 days in filing an application to restore the suit. This application has been dismissed by the trial Court. Challenging the same, the present Civil Revision Petition has been filed.

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4. A perusal of the affidavit filed in support of the condone delay application reveals that due to viral fever, the first plaintiff could not attend

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https://www.mhc.tn.gov.in/judis

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C.R..P.(NPD)(MD).No.93 of 2021

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the Court on 02.02.2018. However, no reasons have been assigned for filing the application to restore the suit after a period of 421 days. The trial Court has found that the suit was initially dismissed for default on 05.08.2010 and it was restored. For the second time, the suit was dismissed for default on 28.03.2011 and it was restored. For the third time, the suit has been dismissed for default on 02.02.2018 and the present application has been filed to condone the delay of 421 days in filing the application to restore the suit. The trial Court has found that the plaintiff is in habit of leaving the suit for default and has proceeded to dismiss the application.

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5. According to the learned counsel appearing for the petitioners/ plaintiffs, since the first petitioner was suffering from viral fever, he could not attend the Court on 02.02.2018.

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6. This Court is not convinced the reasons stated in the affidavit because it does not disclose any reason for the delay thereafter. Further, it is the third time the suit has been dismissed for default. The suit is of the year 2008, therefore, this Court does not find any reason to interfere in the order of the trial Court.

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https://www.mhc.tn.gov.in/judis

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C.R..P.(NPD)(MD).No.93 of 2021

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