LAWS(MAD)-2003-10-179

K VARADARAJAN Vs. K MANI

Decided On October 10, 2003
K.VARADARAJAN Appellant
V/S
K.MANI Respondents

JUDGEMENT

(1.) The above Civil Revision Petition has been filed against the fair and decretal order dated 6.11.2000 made in I.A.No.852 of 2000 in O.S.No.679 of 1990 by the Court of District Munsif, Mettur thereby dismissing the application filed by the petitioner under Section 5 of the Limitation Act, praying to condone the delay of 282 days in filing the application to set aside the decree and to restore the suit which is dismissed for default.

(2.) The case of the petitioner/plaintiff is that he filed the suit in O.S.No.679 of 1990 on the file of the Court of District Munsif, Mettur for a permanent injunction restraining the defendants from in any way unlawfully putting up any further construction of latrine or any other construction in the suit property, directing the defendants to vacate the suit property and hand over possession of the same to the plaintiff and if they refuse to do so, permitting him to take delivery of possession through the process of court and for costs and the same was posted to 8.3.1993 for enquiry; that on that day since he failed to appear before the Court, the suit was dismissed for default; that at the time when the suit was posted for enquiry, he was bedridden and was undergoing treatment at Government Hospital, Bhavani for hernia operation and hence he was not able to travel and attend the court to prosecute the suit proceeding; that only after recovering from the illness, he came to know about the dismissal of the suit for default on 8.3.1999; that he filed an application to condone the delay of 282 days in filing the petition to set aside the default dismissal order and to restore the suit; that the delay is neither wilful nor wanton and hence he would pray for the relief extracted supra.

(3.) In the counter filed by the respondents, they would submit that it is false to state that since the petitioner was undergoing treatment for hernia operation he was not able to attend the court on 8.3.1999; that the petitioner with an intention to drag on the suit proceedings has come forward to file the above application and hence they would pray to dismiss the above application.