MUNUSAMY Vs. KAMALAMMAL

JUDGEMENT

(1.) THIS revision petition challenges an order of the I Assistant Judge, who was in -charge of II Assistant Court, City Civil Court, Madras, dismissing an application in I.A.No.8124 of 2004 in O.S.No.8069 of 1991, seeking condonation of delay of 136 days in making an application for the restoration of the suit.

(2.) THE Court heard the learned Counsel for the petitioners. There is no representation on the side of the respondents.

(3.) THE learned Counsel for the petitioners would submit that it is true that the suit was dismissed for default on 6.10.2003 that the wife of the deceased -first plaintiff fell ill because she sustained fracture that she was hospitalised during the relevant period that the second plaintiff was the only person to attend on her that under the circumstances, they could not come to Court that the Counsel appearing for them at that time, could not also attend Court as she delivered twin children, and thus, for the non -appearance, the suit was dismissed for default that after ordering notice in the revision, an affidavit of the Counsel who appeared for the petitioners before the lower Court, has also been placed before this Court, as to the reasons how she could not appear at the time of the hearing that it is true that there was a delay of 136 days but, it was a suit for partition that if not restored, the plaintiffs would lose their interest in the property, and under the circumstances, the lower Court should have considered the reasons adduced and allowed the application, but not done so, and hence, the order of the lower Court has got to be set aside.