PALANISAMY Vs. KAMALA

JUDGEMENT

(1.) THE civil revision petitioner/petitioner/defendant has filed this Civil Revision Petition as against the order dated 30.01.2008 in I.A. No,4422 of 2007 in I.A. No.1295 of 2006 in un-numbered O.S.(O.S. No,361 of 2001 on the file of the I Additional Sub-Judge, Puducherry) on the file of the Learned I Additional District Munsif at Puducherry in dismissing the application filed under Section 5 of the Indian Limitation Act 1963, seeking to condone the delay of 70 days in filing an application under Order 9 Rule 9 of the Civil Procedure Code. THE trial Court while passing orders in I.A. No,4422 of 2007 on 30.01.2008 has inter-alia opined that 'the petitioner has not given any sufficient reason to prove his side and by filing this application the petitioner is obviously prolonging the case without any merits' and resultantly dismissed the application.

(2.) THE learned counsel for the revision petitioner/defendant urges before this Court that the trial Court has committed an error in rejecting the I.A. No,4422 of 2007 and the said order is vitiated by error of jurisdiction besides the same being unsustainable in the eye of law and also that the revision petitioner has been suffering from viral fever and the same has been evidenced by a medical certificate produced and the petitioner has satisfied the requirement of Section 5 of the Limitation Act and as a matter of fact, the suit has been originally filed before the Additional Sub Court Puducherry and the suit has been decreed ex parte on 02.08.2004 and that the petitioner filed I.A.No.1295 of 2006 in time before the Additional Sub Court Puducherry, but however, without the notice to the petitioner the said application has been transferred to the file of Learned Additional District Munsif, Puducherry, who passed an conditional order dated 22.02.2007 and inasmuch as the transfer proceedings have not been known to the petitioner the order dated 22.2.07 has not been complied with and therefore, the application has been dismissed for default and that on coming to know of the proceedings having been transferred to the file of First Additional District Munsif, Puducherry, the petitioner has filed the instant application for restoration of I.A.No.1295 of 2006 along with an application to condone the delay, and these aspects of the matter have not been appreciated by the trial Court in a proper perspective which has resulted in erroneous order being passed against the petitioner and therefore prays for allowing the civil revision petition in furtherance of substantial cause of justice.

(3.) THE learned counsel for the respondent cites the decision of Gomathi Ammal v. Madhusoodanan Nair and another 1997 (1) CTC 651 at page 653 and 654 wherein it is observed as follows "...In a similar circumstance, Srinivasan, J. (as he then was) in a judgment reported in Sri Pillaiyarpatti Karpaga Vinayagar Koil Nagarathar Trust, etc. v. R.M. Sevagan Chettiar, 1996 (I) CTC 717 held in the following manner:-