P. BALASUBRAMANIAM Vs. J. MURUGAPAN

JUDGEMENT

(1.) The Revision Petitioner, who is the plaintiff has filed the suit in O.S.No.50 of 2004 before the learned Subordinate Judge, Salem against the respondents / defendants to pass a decree in his favour directing the respondents / defendants to pay to the plaintiff a sum of Rs.1,09,950/- with interest at the agreed rate of 24% from the date of suit till the date of realization jointly or severally on the basis of the promissory note and also award the costs of the suit. In consequence, written statement was filed by the respondents / defendants on 27.01.2006. The suit was posted for trial and the same was dismissed for default on 07.04.2011. Thereafter, the petitioner has filed a petition in I.A.No.316 of 2018 before the learned II Additional Subordinate Judge, Salem under Section 5 of the Limitation Act and Section 151 of C.P.C., to restore the suit.

(2.) In the said I.A.No.316 of 2018, before the court below, the petitioner has stated that the suit in O.S.No.50 of 2004 was posted on 07.04.2011, but the petitioner was met with an accident and his legs are damaged and has forced to take treatments continuously at various hospitals for the past two years. Due to the said accident, the petitioner could not contact his counsel to know about the proceedings of the suit. Later on, the petitioner came to the counsel's office and found that the suit was dismissed for default on 07.04.2011, hence he has filed the said petition to restore the suit, as he was actually prevented from appearing this Court along with this petition under Section 5 of the Limitation Act. Therefore, there is a delay in filing the said petition, however the same is neither wilfull nor wanton.

(3.) By way of the counter to the said I.A.No. 316 of 2018, before the court below, the respondents / defendants contended that the petitioner had not filed any suit as against one N.Narayanan, but he had filed this application that the 2nd respondent is N.Narayanan. Further, the petitioner has filed a suit as against one Jayaraman, who is the father of the respondents 1, 3 and 4 and wife of 2nd respondent for relief of recovery of money. The petitioner has impleaded the legal heirs of the said Jayaraman, who are the respondents 1,2,3 and 4 and the cause title did not show the name of Jayaraman. The said suit was posted in the list for several times for trial and the petitioner did not appear before court and the suit was dismissed for default on 07.04.2011. Instead of filing a petition within 30 days from the date of default, i.e., on 06.05.2011, the petitioner / plaintiff has filed a application only on 13.04.2018, thus, from 06.06.2011 to 13.04.2018, the total days of delay is 2532 days, but the petitioner had mentioned only 860 days to condone the delay and that there is no valid reasons stated by the petitioner.