R M ARUNACHALAM Vs. PL R ARUNACHALAM CHETTIAR

JUDGEMENT

(1.) THE plaintiff in the suit in O.S.No.55 of 1994 has filed the above civil revision petition against the fair and decretal order dated 22.11.99 made in I.A.No.263 of 1999 by the Court of Subordinate Judge, Devakottai, on grounds, such as, (i) that the lower court has failed to appreciate that the delay had been properly explained by examination of the petitioner and the Doctor who treated him as well, besides causing production of the document marked as Exs.A-1 to A-10; (ii) that the application under Sec.5 should be viewed liberally, which the lower court has failed to consider; (iii) that the lower court has failed to note that the matter involves substantial determination of issues on facts and the same could not be casually dealt with: (iv) that the orders of the learned Subordinate Judge are opposed to the judgment of the Supreme Court reported in N.Balakrishnan v. M.Krishnamurthy N.Balakrishnan v. M.Krishnamurthy N.Balakrishnan v. M.Krishnamurthy (1999)1 MLJ. (S.C.) 114: (1998)7 S.C.C. 123. On such grounds, the petitioner would pray to set aside the fair and decretal order of the lower court.

(2.) TODAY, when the above matter has been taken up for hearing, in consideration of the pleadings by parties and having regard to the materials placed on record and upon hearing the learned counsel for both, what is assessed is that, seeking to condone the delay of 558 days, the petitioner has filed an interlocutory application in I.A.No.263 of 1999 before the lower court mainly on ground that during the period when the delay had occurred to file the necessary petition to restore the suit, he met major calamities in his life, resulting in serious setbacks in his habits and consequently in his health, thus not only physically his health got affected but also had prolonged mental agony, sufferings and afflictions, as a result of which he was not able to take steps in time to restore the suit, which was dismissed for default. The petitioner, pleading that he recouped himself from all his illness and then on the advice of his counsel, he came forward to file the petition, and hence, would pray to condone the said delay of 558 days that had occurred in filing the application to restore the suit.

(3.) THE upper forum of law have more often held that even if the delay is not properly explained, the petitioner should not be punished with denial of opportunity to prosecute the case, wherein his valuable rights are involved and when once such petitioners are not allowed to participate in the further proceedings by dismissing the condonation applications filed to condone the delay on certain technicalities, the other side whether has any genuine rights or not, wins the entire case and the petitioner loses all his rights in the suit and to avoid such calamities, the petitioners could not be punished with costs and not with denial of opportunity to prosecute the case wherein his valuable rights are involved.