A S T SHANMUGAM Vs. M SHANMUGASUNDARAM

JUDGEMENT

(1.) THE petitioners/petitioners/defendants have projected this civil revision petition as against the order dated 31. 07. 2009 in I. A. No. 549 of 2008 in O. S. No. 48 of 2005 passed by the Learned Principal District Munsif, Karaikal in dismissing the application filed by the revision petitioners under Section 5 of the Limitation Act read with Section 151 of Civil Procedure Code, praying to condone the delay of 541 days in preferring an application to set aside the order of exparte dismissal of the suit dated 05. 01. 2007.

(2.) THE trial Court while passing orders in I. A. No. 549 of 2008 on 31. 07. 2009 has inter alia opined that 'this Court with open mind accepts the reason stated by the first respondent and also the second respondent in their counter. According to the submission of both the respondents the petitioner did not prove any documentary evidence to prove the delay of 541 days in filing of the set aside petition. Even though the first petitioner is not attended the Court and the second plaintiff should take care in conducting of this case on the absence of the first plaintiff. So this Court come to the conclusion that the delay of 541 days in filing of set aside petition is not excusable and also this Court should not permit the petitioner to vaguely file this petition' and resultantly dismissed the petition with costs in the interest of justice.

(3.) THE learned counsel for the revision petitioners/plaintiffs urges before this Court that the impugned order of the trial Court dated 31. 07. 2009 in I. A. No. 541 of 2008 in O. S. No. 48 of 2005 as against law and facts of the case and that the trial Court has simply ignored the submissions from the petitioners side that the first petitioner has been away from Karaikal because of his illness and for the treatment and also that the learned counsel has not informed him about the position of the case and that a party should not suffer on account of the failure on the part of the counsel to pursue the matter and further, the trial Court has accepted the stand of the respondents/defendants that no documentary proof is there to show that the first petitioner has been suffering from ailment and that no evidence has been let in by the respondents stating that the first petitioner has been keeping good health and the factual position is the medical report dated 20. 05. 2008 received from the Aravind Eye Hospitals and Post Graduate Institute of Ophthalmology, Pondicherry has been filed and another letter dated 17. 06. 2008 from the Doctor touching the ailment and treatment has also been filed and the medical report dated 20. 05. 2008 speaks of the follow up since 17. 10. 2003 and that the first petitioner is a non diabetic patient on treatment etc. , and in short there have been examinations on 15. 10. 2007 and the treatment called Pan Retinal Photocoagulation for both eyes in 3 sittings in the month of October, November 2007 and again examination on 04. 03. 2008 and treatment on 08. 03. 2008 and the follow up on 21. 05. 2008 will go to show that the relevant period after the dismissal has been consumed by his ill health and treatment and as such he has not been in a position to file the application in time and thus the 'sufficient cause' has been shown but these aspects of the matter have not been adverted to and appreciated by the trial Court in proper and real perspective.