MANICKAVASAGAM Vs. AMMAYAPPA PILLAI

JUDGEMENT

(1.) THE appellant has filed a Suit in O.S. No.364 of 2000, which came to be dismissed on 28.1.2003, against which, he filed an Appe"al, which was transferred from Sub-Court to the Principal District Judge, Srivilliputhur and renumbered as A.S .No.109 of 2003. THE said Appeal was posted for hearing on 25.4.2005 to let in additional evidence. As there was no rep"resentation on that day, the Appeal was dis"missed for default. THEreafter, the appellant filed I.A. No.291 of 2005 for restoration of the Appeal.

(2.) THE respondents in the Restoration Application filed a counter affidavit and contended that the Appeal was posted for hearing on 8.4.2005 and at the request of the petitioner; it was posted for arguments as last chance on 19.4.2005. Again the matter was adjourned to 21.4.2005 and finally listed for arguments on 25.4.2005. He further submitted that the con"tention of the petitioner that he wanted to let in additional evidence is incorrect. Since, the counsel for the petitioner reported "no instruc"tions" before the Court; the Appeal was dis"missed for default. He further submitted that the contentions that the appellant was present in the Court on 25.4.2005 and his name was called out by the Court before the order of dismissal are incorrect. He further submitted that though the appellant was very well aware of the dismissal of the Appeal, he has not chosen to file any Ap"plication to set aside the order of dismissal within 30 days, statutory period, and no reasons have been assigned for filing the Restoration Application, after considerable delay.

(3.) LEARNED counsel for the appellant sub"mitted that the Appellate Court ought not to have dismissed the petition on the ground that it was filed beyond the period of limitation, since Registry did not raise any objection re"garding limitation when it was presented. He further submitted that if Registry had objected to the maintainability of the Application, the appellant would have given an opportunity to file an Application to condone the delay in seeking to set aside the exparte decree. He fur"ther submitted that considering the nature of relief sought for in the Suit, the Court below ought not to have dismissed the Petition on the ground of technicalities, which would defeat the principles of natural justice. He further submitted that the Court should be liberal while dealing with the matters relating to res"toration or condonation of delay and what has to be considered is only the substantial justice. Technicalities should not pay way in deciding such Application. He also submitted that the Court below ought to have considered the background and age of the appellant and should have given opportunity to prove his ti"tle to the property and that the dismissal of the petition, has resulted irreparable injury, which amounts to shut down his case on mere techni"cal ground.