Y MUNNEER BASHA Vs. P PAPPATHI ALIAS RAJAMANI

JUDGEMENT

(1.) THE petitioners/plaintiffs 2 and 3 have filed this Civil Revision Petition as against the order dated 13. 07. 2009 in I. A. No. 149 of 2007 in O. S. No. 370 of 2001 passed by the learned Additional District Munsif Court, Namakkal, in dismissing the application filed by the revision petitioners under Section 5 of the limitation Act praying to condone the delay of 282 days in filing an application under Order 9 Rule 9 of C. P. C to restore the suit that has been dismissed for default on 14. 03. 2006.

(2.) THE trial Court, while passing order in I. A. No. 149 of 2007, has inter alia observed that

(3.) THE learned counsel for the revision petitioners/plaintiffs 2 and 3 urges before this Court that the trial Court has committed an error in dismissing the application in I. A. No. 149 of 2007 ignoring the averments made in the application and as a matter of fact, the trial Court has not taken note of the fact that the mother of the revision petitioners viz. , the first plaintiff has expired on 10. 04. 2006 and earlier application in i. A. No. 1026 of 2006 has not been pressed because of the simple fact that the date of the order has been wrongly mentioned as 13. 03. 2006 instead of the correct date 14. 03. 2006 and added further, the mother being the first plaintiff has not been keeping good health on 07. 03. 2006 and later she died on 10. 04. 2006 and hence, the delay in projecting the Section 5 application in I. A. No. 149 of 2007 is neither wilful nor wanton and added further, the Order II Rule 2 of civil Procedure Code is not applicable to the facts of the present case. But these factual aspects of the matter coupled with the legal position have not been adverted to and appreciated by the trial Court in proper perspective which has resulted in miscarriage of justice and therefore, prays for allowing the civil Revision Petition to subserve the ends of justice.