Smt. Rajamani and Others vs Rukmaniammal and Others

M. Venugopal, J.—The revision petitioners/defendants have filed this revision petition as against the order dated 28.10.2008 in I.A. No. 35

of 2007 in O.S. No. 195 of 1992 passed by the II Additional District Munsif Court, Coimbatore in allowing the application filed under Order 9

Rule 9 of CPC by the first respondent/petitioner/plaintiff.

The trial Court, while passing orders in I.A. No. 35 of 2007, has inter alia observed that ''an opportunity has to be provided to the first

respondent/petitioner/plaintiff to project her case and in that view of the matter has allowed the application directing the first respondent/ petitioner/

plaintiff to pay a sum of Rs. 1000/- towards cost on or before 04.11.2008 and the matter has been directed to be called on 05.11.2008 before

the trial Court.''

It appears that the first respondent/petitioner/ plaintiff has remitted the sum of Rs. 1000/- towards cost to the credit of the suit O.S. No. 195 of

1992 before the trial Court.

The learned Counsel for the revision petitioners contends that the trial Court has taken note of the fact that O.S. No. 683 of 1990 filed for

partition by the first respondent/plaintiff has been dismissed for default as early as 06.06.2001 and has become final and likewise O.S. No. 1230

of 1992 filed against the first respondent/petitioner/ plaintiff has been decreed exparte by the I Additional Sub Court, Coimbatore, which has

become final and therefore, there is no justification for maintaining the present suit O.S. No. 195 of 1992 and moreover, the injunction suit filed in

the year 1992 cannot at all be proceeded with after a lapse of 16 years taking note of the subsequent events and that the defendants 9 and 10 have

expired longtime back and the suit has been abated against them and these aspects of the matter have not been looked into by the trial Court in a

proper perspective, which has resulted in miscarriage of justice and therefore, prays for allowing the revision in the interest of justice.

Contending contra, the learned Counsel for the first respondent submits that the trial Court has exercised its judicial discretion in passing a

conditional order in I.A. No. 35 of 2007 which is a well-merited one and the trial Court has only been influenced based on the principle of

providing an opportunity to the first respondent/plaintiff to conduct the case and therefore, prays for dismissing the revision.

The learned Counsel for the revision petitioners/ defendants cites the decision M. Somasundaram and Anr. v. District Collector-cum-

Accommodation Controller, Chennai and Ors. (2008) 3 MLJ 821 wherein this Court has held that ''the present suit is hit by Doctrine of re-

litigation and abuse of process of Court and that plaint ordered to be rejected.'' He also cites the decision in M. Gurusamy (died) and Anr. v. G.

Vijaya and Ors. (2008) 1 MLJ 716 wherein this Court has held that ''the Court is competent to reject a plaint at any state of the proceedings if it

finds that conditions under Rule 11 of Code of Civil Procedure, 1908 exist and that the said provisions are not exhaustive and the Court has got

inherent powers to see that vexatious litigations are not allowed to take or consume the time of the Court etc.''

The learned Counsel for the first respondent cites the decision in N. Balakrishnan Vs. M. Krishnamurthy, wherein the Hon''ble Supreme Court

has observed that ''there is no presumption that delay in approaching Court is always deliberate and that the words ""sufficient cause"" u/s 5 of the

Limitation Act should receive a liberal construction so as to advance substantial justice etc.''

This Court has paid its anxious consideration to the arguments advanced by the learned Counsel appearing for the parties and noticed their

contentions.

In this connection, a perusal of the affidavit in I.A. No. 35 of 2007 filed by the first respondent/plaintiff do clearly indicate that the first

respondent/petitioner/ plaintiff has been bed-ridden and not able to move about and contact her counsel and that the suit has been filed against her

husband and sons and hence, she has no persons to help her in her affairs and when the matter has been taken up for hearing on 7.6.2005, the

same has been dismissed for her non-appearance and that her non-appearance is neither wilful nor wanton but due to the aforementioned reason.

In the counter filed by the 4th petitioner/8th defendant/8th respondent and adopted by respondents 5 to 7 and 11 to 14 therein, being the legal

representatives of deceased 9th and 10th defendants have not been arrayed as parties in the suit at all and that as against the 9th defendant the suit

has already been abated and has been dismissed on 14.03.1997 and later I.A. No. 283 of 2005 filed by the first respondent/plaintiff to condone

the huge delay of 3297 days to implead the legal representatives of 9th defendant has been dismissed on 02.06.2005 and further that consequent

upon the death of 10th defendant on 17.08.2005, the first respondent/petitioner/plaintiff has not taken steps to implead the legal representatives

and only in I.A. No. 272 of 2006 the first respondent/plaintiff has chosen to add the respondents 2 to 4 etc. and that when the first

respondent/petitioner/plaintiff filed I.A. No. 272 of 2006, the suit against the 10th defendant has been abated and in that scenario, the application

to restore the present suit is not maintainable per se in law and the same is liable to be dismissed.''

On going through the order of the trial Court, this Court is of the considered view that the trial Court has exercised its judicial discretion in

allowing the application I.A. No. 35 of 2007 filed by the first respondent/ petitioner/plaintiff. The trial Court has thought it fit to provide an

opportunity to the first respondent/petitioner/ plaintiff to establish her case. Moreover, the first respondent/petitioner/plaintiff has stated that

because of her ill-health she has not appeared before the Court. As a matter of fact, the trial Court has passed a conditional order of allowing the

I.A. No. 35 of 2007 on payment of cost of Rs. 1000/- to be paid before 04.11.2008 etc. Further, the said amount of cost of Rs. 1000/- has been

deposited by the first respondent/petitioner/plaintiff to the credit of I.A. No. 35 of 2007 in O.S. No. 195 of 1992 pending on the file of II

Additional District Munsif Court, Coimbatore.

It is to be noted that Courts of law are to deliver substantial justice to the parties overriding technicalities. Technicalities should not be an irritant

in the administration of justice. By allowing a litigant to take part in the proceedings, the highest thing can happen is the merits of the matter will be

gone into by a competent Court of law. It is to be pointed out that judiciary is respected not on account of its power to legalise injustice on

technical grounds but because it is capable of removing so and it is expected to do so.

Looking at any point of view, the exercise of discretion by the trial Court in passing a conditional order in I.A. No. 35 of 2007 ordering cost of

Rs. 1000/- does not suffer from any irregularity or patent illegality in the eye of law and the same is a proper and effective one so as to secure the

ends of justice and in that view of the matter, the civil revision petition fails and the same is hereby dismissed.

In the result, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. Consequently, connected miscellaneous petition is

also dismissed.