MINOR SIVASANKARI Vs. G SUBRAMANIAM

JUDGEMENT

(1.) AGGRIEVED by the Order passed by the lower court, in allowing an application for condonation of delay, this revision is filed.

(2.) AFTER hearing the counsel appearing for the petitioner as well as the respondents, I am satisfied that the order passed by the lower court cannot be accepted at all. The revision petitioner herein filed a suit in O.S.No.359 of 1990 for partition and separate possession of the plaintiff's share in the properties. There are two defendants in the suit. The 1st defendant is the father of the plaintiff. The 2nd defendant is the brother of the 1st defendant. In this case, we find that the 2nd defendant is not chosen to file any affidavit at any stage of the proceedings. It is only the 1st defendant, who has been filing affidavits alleging certain reasons. The 2nd defendant kept himself behind the scene. The 1st defendant has alleged that because his ill-health and medical treatment, he could not appear in court or contest the matter. If he is the sale defendant, perhaps one can understand the logic behind the explanation But, there is another defendant in the suit, who is none else than his brother and who is also equally interested in contesting the suit. It is not stated that the brother was unwell or that he could into for certain reasons participate in the court proceedings by taking active steps. The 1st defendant, who has been alleging medical grounds has not even chosen to produce any medical certificate. The 1st defendant would also allege that he has been suffering at the same time from number of aliments. It is stated that he was suffering from acute jaundice. It is also stated that he suffered from dyeheris. When the suit in O.S.No.359 of 1990 stood posted for appearance, the defendants did not appear. The suit was posted to 4.4.1991 for appearance of the defendants. The defendants did not appear and therefore they were not set ex parte. An application was filed to set aside the ex parte order, where it was alleged that these was a over-sight by the clerk of the counsel. The said application in I.A.No.1717 of 1991 was dismissed for default by the court. Therefore, I.A.No.80 of 1993 was filed by the defendants to condone the delay of 37 days in filing the application to restores the said application. In the affidavit filed in support of the said application, it was stated that the petitioners defendants could not meet the counsel due to sickness of the 1st petitioner G.Subramaniam. It is stated that the was seriously ill from 28.9.1993 to 15.12.1993 and by that time, the final decree application was filed. In the final decree application, a Commissioner was appointed. Only at that stage, the petitioners defendant choose to file an application to restore the application in I.A.No.1717 of 1991, that was dismissed for default. In the application filed in I.A.No.80 of 1993, it was stated that they came to know of the dismissal of I.A.No.1717 of 1991 only after they received the notice from the Commissioner, and thus they could not file the application for restoration and they came to know of the same only from the Commissioner and thus, there is a delay of 37 days, and therefore, he filed an application in I.A.No.80 of 1993 to condone the delay in filing the application to restore I.A.No.1717 of 1991. Along with that, they had also filed an application in I.A.No.81 of 1993 for stay of all further proceedings in final decree. Application No.479 of 1994 is the application filed to restore I.A.No.1717 of 1991 to file. In the meanwhile, the defendants approached the High Court by filing an appeal against the order in C.M.A.No.1 of 1994, which was later dismissed as not pressed. The said order permitted appellate to prosecutor the application for restoration of connotation of delay. Meanwhile, the delay occurred in filing the application to restore I.A.No.479 of 1994 to file. The total number of days delay in 733 days. To excuse the same the application in I.A.No.750 of 1997 was filed.

(3.) IN the result, this revision is allowed, with cost setting aside the order passed by the lower court. The petition filed by the defendants in I.A.No.758 of 1997 in O.S.No.359 of 1990 will stand dismissed, with costs. Consequently C.M.P.No.9726 of 1998 and 10584 of 1999 shall stand dismissed.