KRISHNASWAMI GOUNDER Vs. VALLIATHAL

JUDGEMENT

(1.) THIS Revision is directed against the Order of Subordinate Court, Dharapuram in I.A.No. 261 of 1996 in A.S.No. 49 of 1995, dated 27.4.1998 allowing the Petition filed under Or.41, R.19 of C.P.C. ordering restoration of the Appeal in A.S.No. 49 of 1995 which was dismissed for default on 13.11.1996. Third Defendant is the Revision Petitioner.

(2.) THE Respondents have filed a suit in O.S.No. 578 of 1983 before the District Munsif Court, Dharapuram for declaration of title to 'A' schedule property and for injunction and also partition of 'B' schedule property and other reliefs. THE suit was dismissed by the trial Court on 13.1.1995. THE Respondents preferred A.S.No. 49 of 1995 before the Sub Court, Dharapuram. THE said appeal was heard by the Subordinate Court and the respondents filed an application in I.A.No. 179 of 1996 for reopening of the appeal and the matter was posted for further arguments. THE said application was allowed and the main Appeal was posted for further arguments on 13.11.1996. On 13.11.1996, the Respondents/ Plaintiffs did not appear and hence, the appeal was dismissed for default.

(3.) ACCORDING to the Appellants, the third appellant was unwell and hence, he could not meet the counsel and therefore, the counsel has reported no instructions on 13.11.1996. To show that the fifth Appellant Nachimuthu Gounder was suffering from illness, he has examined himself as P.W.1 and the medical certificate was marked as Ex.P.1. There is no reason to disbelieve Ex.P1 medical Certificate and the evidence of the fifth Appellant. In consideration of the evidence of P.W.1 and Ex.P1, the first Appellate Court has ordered restoration of the Appeal.