ELLAPURAM PANCHAYAT UNION PERIAPALAYAM Vs. BHAVANIAMMAN DEVASTANAM

JUDGEMENT

(1.) THE defendant in O. S No. 413 of 1972, District Munsif-s Court, Tiruvellore, is the petitioner in this civil revision petition. That suit was instituted by the respondent herein for a declaration that a passage leading to the Devasthanam in Periyapalayam belongs to it and also for an injunction. That suit was resisted by the petitioner herein on several grounds which need not be noticed in detail for purposes of the present civil revision petition. Suffice it to say that the learned District Munsif, Tiruvellore, on consideration of the oral as well as documentary evidence, dismissed the suit instituted by the respondent on 30th July, 1973. Aggrieved by that, the respondent preferred an appeal in A S. No. 178 of 1973 to the Sub-Court, Kancheepuram. In order to contest the appeal, the petitioner had engaged one Thiru C. M. Palanirajakumar as counsel. THE appeal A. S. No. 178 of 1973 filed by the respondent herein before the Sub-Court, Kancheepuram, was later transferred to the file of the II Additional Subordinate Judge, Chengalpattu, as per order dated 6th December, 1977 in accordance with the proceedings of the District Judge. THE appeal so transferred from Sub-Court, Kancheepuram, to the Sub-Court, Chengalpattu, was received by Sub-Court, Chengalpattu, on 15th December, 1977 and renumbered as A. S. No, 188 of 1977 on its file and posted for hearing on I6fh January, 1978. From 16th January, 1978, it was adjourned to 15th February, 1978 and on that day, Thiru D K Sampath, Advocate, Chengalpattu, filed vakalat in the appeal on behalf of the respondent, and the appeal was adjourned to 27th February, 1978. On 27th February, 1978, the petitioner was stated to be absent and the appeal was directed to be posted in the list for hearing on 17th April, 1978. From 17th April, 1978 the hearing of the appeal was adjourned to 18th April, 1978. and on 18th April, 1978, the appeal was further adjourned to 24th April, 1978. Oa 24th April, 1978, the notes paper indicates, -both not ready- and the appeal was thereafter adjourned to 12th July, 1978, Frost 12th July, 1978 the appeal was adjourned to 15th July, 1978, 20th July, 1978, 25th July, 1978, 27th July, 1978 and thereafter to 29th July, 1978, On 29th July, 1978, arguments were heard and judgment was reserved and on 4th August, 1978, the learned Subordinate Judge, Chengalpattu, on a consideration of the merits, allowed the appeal setting aside the dismissal of the suit instituted by the respondent herein and decreeing it as prayed for. On 25th July, 1980, the petitioner filed I. A. No, 140 of 1980 in A. S. No. 183 of 1977, II Additional Sub-Court, Chengalpattu, to condone a delay of 690 days in filing an application to rehear the appeal. In the affidavit n support of that application, the petitioner referred to the filing of the anneal in A. S. No. 178 of 1973, Sub-Court, Kancheepuram, by the respondent and the engaging of a counsel by the petitioner. THE petitioner further stated that the counsel so engaged by the petitioner informed the petitioner in 1977 that the appeal had been transferred to Sub-Court. Chengalpattu. Even thereafter, the petitioner claimed that the petitioner was under the impression that a notice for the hearing of the appeal will be sent by Sub-Court. Chengalpattu, but that it did not receive any such notice and that the petitioner became aware of the result of the appeal only on 28th June, 1980. THE petitioner thus claimed that the petition for restoration of the appeal had been filed within thirty days of the date of knowledge of the result of the appeal and prayed that the ex-parte disposal of the appeal should be set aside and that the appeal should also be reheard on its merits.

(2.) THAT application was resisted by the respondent herein on the ground that even according to the petitioner, the petitioner was aware of the transfer of the appeal from Sub-Court, Kancheepuram, to Sub-Court, Chengalpattu, and that in spite of it, the petitioner did not take any steps whatever for defending the appeal It was also pointed out that the petitioner had been informed about the result of the appeal by the respondent by communications addressed to the petitioner by the Managing Trustees of the respondent. A further objection was also raised before Sub-Court, Chengalpattu, that Thiru Varada Reddy, Advocate, offered to appear on behalf of the petitioner on 15th February, 1978. The respondent also contended that the disposal of the appeal was on the merits and not ex parte and that the petitioner has not satisfactorily explained everyday-s delay.

(3.) WHAT is urged by the learned counsel for the petitioner on the strength of Order 41, rule 17 (2), Code of Civil Procedure, is that the disposal of the appeal A. S. No. 188 of 1977 by the Sub Court, Chengalpattu, is an ex parte disposal and that that appeal should be restored and reheard in the exercise of the powers under Order 41, rule 21, Code of Civil Procedure. The learned counsel for the petitioner further submits that the petitioner was bona fide under the impression that a fresh notice of the day fixed for the hearing of the appeal will be sent by Sub Court, Chengalpattu, to which Court the appeal stood transferred and since no such notice was received, effective steps were not taken by the petitioner for the conduct of the appeal and therefore, this would be a case of non-service of notice, which would be sufficient cause for the nonappearance of the petitioner at the time when the appeal in A, S. No. 188 of 1977 was disposed of. The farther contention of the learned counsel for the petitioner that the application to set aside the ex parte disposal of the appeal had been filed immediately after the petitioner became aware of the result of the appeal on 28th June, 1980 and, therefore, the delay has been satisfactorily explained.