N. KANCHANA Vs. A.K.K. GOVINDARAJAN

JUDGEMENT

(1.) Notice before admission was given and the respondent is also before this Court represented by a learned counsel. Since in the present revision, the order condoning the delay of 697 days in filing the application under Order 9, Rule 9 of C.P.C. to restore the H.M.O.P. filed by the respondent herein which had been dismissed for default on 09.01.2009 is under challenge, the learned counsel appearing for both parties submit that the issue involved in the Civil Revision Petition can be finally disposed of even without calling for the records of the lower Court. This Court is also of the view that summoning of the records of the lower Court is not necessary for the disposal of the Civil Revision Petition. Hence, the arguments advanced by Mr.J.Harikrishna, learned counsel for the petitioner and by Mr.Avinesh Wadhwani, appearing on behalf of the learned counsel for the respondent are heard. The materials produced in the form of typeset of papers are also perused.

(2.) The facts leading to the filing of present Civil Revision Petition are as follows:-

(3.) The main contention of the learned counsel for the revision petitioner is that without even considering the question on whom the burden of proof lies in an application filed under Section 5 of the Limitation Act, the learned trial Judge has chosen to make an observation finding fault with the revision petitioner herein that she had not produced any evidence in proof of the alleged reunion, promise to withdraw the H.M.O.P. and the subsequent ill-treatment and desertion on the part of the respondent herein, his sister and his mother. According to the submissions made by the learned counsel for the revision petitioner, the said approach made by the learned trial Judge is totally erroneous because even in the absence of any evidence in proof of the contentions raised in the counter statement, the initial burden cast on the respondent herein, who was the petitioner before the trial Court, would not get discharged or shifted on the revision petitioner in the absence of any evidence adduced on his side in proof of the averments made in the supporting affidavit. It is also the contention of the learned counsel for the revision petitioner that a mere reading of the supporting affidavit and consideration of the reasons stated therein will make it clear that he has not come forward with any acceptable explanation as to why he had allowed the passage of more than 700 days from the date of dismissal of the H.M.O.P. before he approached the trial Court with an application to restore the H.M.O.P. along with the application to condone the delay in filing such an application.