KAMATCHI GOUNDER Vs. A THANGASAMY

JUDGEMENT

(1.) This appeal has been filed by the legal heirs of the original defendant challenging the dismissal of the rehearing petition filed in I.A.No.1082 of 2008 in A.S.No.9 of 2006 by the first appellate Court.

(2.) The brief facts of the case are as follows:

(3.) The learned counsel appearing for the appellants would submit that at the time of hearing the appeal, the original defendant was under treatment for tuberculosis disease and therefore, she could not instruct her counsel and therefore, the learned counsel sought for adjournment before the first appellate Court and as the first appellate Court has refused to give adjournment, he reported "no instructions" before the first appellate Court. Immediately on the next day, the first appellate Court pronounced the judgment. Within one year thereafter, the original defendant died due to the said disease. PW1 itself admitted in his cross examination that the original defendant is suffered by tuberculosis disease. Further, the appellants have produced various documents in order to prove the disease suffered by the original defendant. But, the Tribunal, without properly considering the above facts, has erroneously held that it has not been proved that the original defendant was suffered by the said disease on the date of reporting no instruction. Thus, he submitted that seeking adjournment and thereafter, reporting "no instruction" was neither wilful nor wanton.