Kanniyammal and Others vs Parivel

D. Hariparanthaman, J.—The revision petitioners are the legal heirs of the defendant in O.S. No. 147 of 2007. The respondent in the

revision petition is the plaintiff in O.S. No. 147 of 2007 on the file of the District Munsif, Musiri. The suit was filed for specific performance of a

contract. The same is not very much relevant for deciding this civil revision petition.

When the suit was posted for hearing on 19.12.2007, the defendant remained ex parte and the suit was decreed ex parte on 19.12.2007.

The defendant filed application in I.A. No. 182 of 2009 in O.S. No. 147 of 2007 on 17.2.2009, to condone the delay of 430 days in filing the

petition to set aside the ex parte decree. It is stated that due to his illness, he was not able to attend the Court. Subsequently, he died on 9.9.2010.

Thereafter, the legal heirs have now come on record.

The respondent/plaintiff resisted I.A. No. 182 of 2009 in O.S. No. 147 of 2007 stating that the defendant appeared in E.P. 39 of 2008 on

20.11.2008, 18.12.2008 and 22.1.2009. Therefore, the application in I.A. No. 182 of 2009, seeking to condone the delay of 430 days on the

ground of his ill health, has to be rejected.

After hearing both sides, the Trial Court passed an order dated 19.8.2009 dismissing I.A. No. 182 of 2009 in O.S. No. 147 of 2007. This

revision is filed by the legal heirs questioning the order dated 19.8.2009 in I.A. No. 182 of 2009 in O.S. No. 147 of 2007.

Heard both sides.

In the affidavit filed by the original defendant on 17.2.2009, it is stated that he is not well and therefore, he was not able to attend the Court on

19.2.2007. Thereafter, he died on 9.9.2010.

In the facts and circumstances of the case, I am of the view that the legal heirs have continued the proceedings and they wanted to contest the

suit, But the interim application was rejected by the Trial Court on the ground that the defendant failed to explain the delay giving sufficient reasons.

In the facts and circumstances, I am of the view that the Trial Court committed an error in dismissing the interim application, without taking into

account the fact that the respondent died after filing the affidavit on 17.2.2009 that he was not well and he did not attend the Court due to illness.

Therefore, in the interest of justice, the legal heirs should be given one more opportunity to contest the suit and a direction is issued to the

petitioners to pay a sum of Rs. 2,000/- (Rupees two thousand only) to the respondent as cost within a period of two weeks from the date of

receipt of a copy of this order. On payment of cost of Rs. 2,000/-, the order dated 19.8.2009 in I.A. No. 182 of 2009 in O.S. No. 147 of 2007

is set aside and the matter is remanded back to the learned District Munsif, Musiri to complete the proceedings in O.S. No. 147 of 2007, within a

period of six months thereafter. The Civil Revision Petition is allowed on the above terms. Consequently, connected miscellaneous petition is

closed.