M. GEORGE Vs. RAJASEKARAN @ THODDA RAMA

JUDGEMENT

(1.) Challenging the fair and final order passed in I.A. No. 63 of 2013 in A.S. No. 5 of 2005 on the file of the III Additional District and Sessions Court, Erode at Gobichettipalayam, the plaintiff in O.S. No. 55 of 1999 on the file of the District Munsif Court, Sathyamangalam has filed the above Civil Revision Petition.

(2.) The plaintiff filed the suit in O.S. No. 55 of 1999 for declaration, recovery of possession and for permanent injunction. After contest, the trial Court, by its judgment and decree dated 06.08.2001, dismissed the suit. As against the same, the plaintiff preferred an appeal in A.S. No. 5 of 2005 on the file of the III Additional District and Sessions Court, Erode at Gobichettipalayam. Thereafter, the appeal was dismissed for non prosecution on 12.11.2008. Subsequently, the petitioner/plaintiff filed an application in I.A. No. 63 of 2013 to condone the delay of 1481 days in filing the petition to restore the appeal which was dismissed for default on 12.11.2008. The said application was filed on 02.01.2013. In the affidavit filed in support of the petition, the petitioner has stated that he was suffering from Paralysis on 10.03.2007 and he was taking treatment and his son took him to Bangalore for giving Ayurveda treatment. Further, the petitioner has stated that he got well to some extent on 30.12.2012 and met his counsel who informed that on 16.03.2007 itself, he had reported no instructions and therefore, the Lower Appellate Court issued notice to the petitioner and after several adjournments, the appeal was dismissed for default on 12.11.2008. The application filed by the petitioner was opposed by the defendants. In the counter filed by the 2nd respondent, he has stated that the petitioner has not stated where the petitioner took treatment and also failed to give the details of the treatment given to him. Before the Lower Appellate Court, he was examined as P.W.1 and his friend was examined as P.W.2. It is pertinent to note that the Doctor who gave treatment to the petitioner was not examined as a witness.

(3.) When the delay is inordinate, the petitioner should have examined the Doctor to establish that he took treatment under the said Doctor. In the absence of sufficient cause shown by the petitioner, the delay cannot be condoned. The Lower Appellate Court, considering all these aspects, disbelieved the case of the petitioner and dismissed the petition.