AUGUSTINE PILLAI (DIED) Vs. DON BOSCO SOCIETY

JUDGEMENT

(1.) The suit laid by the petitioners / plaintiffs against the respondents / defendants for declaration and permanent injunction was dismissed for default. The petitioners / plaintiffs seeking to restore the suit preferred an application. Inasmuch as the said application has not been preferred in time allowed by law and there is a delay of 829 days in filing the said application, it is found that the petitioners / plaintiffs preferred an application in I.A.No.806 of 2005 to condone the delay. The reason given by the petitioners / plaintiffs for the condonation of the delay is that on the date, when the suit was adjourned for their appearance, the first plaintiff conducting the proceedings was ill and taking bed treatment and native medicine and therefore, he was unable to appear before the Court and thereafter, when he contacted his counsel, he had come to know about the dismissal of the suit and hence, filed the necessary application with reference to the same and hence, the delay should be condoned.

(2.) The above application of the petitioners / plaintiffs was stoutly resisted by the respondents / defendants contending that inasmuch as the petitioners / plaintiffs have no case at all and the case preferred by them is bereft on merits, according to them, the petitioners / plaintiffs have deliberately left the suit to go for dismissal and further, according to them, in respect of the same subject matter, the first plaintiff has instigated his son to lay another suit in O.S.No.446 of 2004 and therefore, it is stated that the plea of illness and taking bed treatment and native medicine etc., are all made only for the purpose of this application and concocted and the petitioners / plaintiffs have not adduced any acceptable and reliable cause for the condonation of the delay and on the other hand, the cause projected by the petitioners / plaintiffs is false and misleading and also not substantiated with acceptable materials and inasmuch as the suit laid through the son of the first plaintiff in O.S.No.446 of 2004 has come to be dismissed, according to the respondents / defendants, the petitioners / plaintiffs have revived the suit laid by them with false reasons and hence, the application is liable to be dismissed.

(3.) In support of the case of the petitioners / plaintiffs, P.W.1 was examined and no documentary evidence was adduced and on the side of the respondents / defendants, R.W.1 was examined and Exs.R1 to R11 were marked.