Sudalaimuthu and Alagammal vs Meenakshi Ammal

Honourable Mr. Justice M. Jaichandren

This Civil Revision Petition has been filed against the order, dated 6.4.2009, made in I.A.No.19 of 2007, in O.S.No.16 of 2001, on the file of the Principal District Munsif Court, Tiruchendur.

By an order, dated 6.4.2009, the Principal District Munsif Court, Tiruchendur, had allowed the interlocutory application, in I.A.No.19 of 2007, filed by the respondent herein, who is the plaintiff in the suit, in O.S.No.16 of 2001. The respondent had filed the suit, in O.S.No.16 of 2001, on the file of the Principal District Munsif Court, Tiruchendur, praying for a decree declaring that the plaintiff is the absolute owner of the plaint schedule property and to consequently, direct the defendants in the said suit, the petitioners herein, to hand over vacant possession of the said property. The said suit had been dismissed for default, on 2.7.2002, due to the non-appearance of the counsel, who was appearing on behalf of the plaintiff. Therefore, the plaintiff in the suit, who is the respondent in the present civil revision petition, had filed an interlocutory application, in I.A.No.19 of 2007, for the restoration of the suit, which had been dismissed for default, on 2.7.2002. Though, the petition had been filed by the counsel for the plaintiff, the advocate clerk attached to the office of the counsel for the plaintiff had filed the affidavit stating that the suit had been posted for trial on 2.7.2002. However, he had wrongly noted the date of hearing due to oversight. Therefore, the counsel for the plaintiff had not appeared before the concerned Court on the date of the hearing of the suit, due to which the suit had been dismissed for default. Thereafter, the Principal District Munsif Court had condoned the delay of two days in filing the said application and had allowed the interlocutory application, by an order, dated 6.4.2009. Aggrieved by the said order the defendants in the suit had filed the present civil revision petition, before this Court.

The main contention of the learned counsel appearing for the petitioners is that the advocate clerk, attached to the office of the learned counsel appearing on behalf of the plaintiff, cannot file an affidavit in the interlocutory application for the restoration of the suit, which had been issued for default, on 2.7.2002. Therefore, the order passed by the Principal District Munsif, Tiruchendur, dated 6.4.2009, is invalid in the eye of law.

Per contra the learned counsel appearing on behalf of the respondent in the present civil revision petition, who was the plaintiff in the suit in O.S.No.16 of 2001, had stated that the interlocutory application, in I.A.No.19 of 2007, had been filed to restore the suit, which had been dismissed for default, on 2.7.2002. The petition had been signed by the learned counsel appearing on behalf of the plaintiff. However, the affidavit stating the facts leading to the dismissal of the suit had been signed by the advocate clerk attached to the office of the learned counsel, who had appeared on behalf of the plaintiff.

He had further stated that there is nothing illegal in the filing of an affidavit by an advocate clerk, in support of the petition filed by the counsel, for the restoration of the suit, by condoning the delay of two days in filing the said application. He has relied on the decision of this Court, reported in R.M.Bedi Vs. Vijayeswari Textiles Ltd. (2007 (3) CTC 231), wherein, it had been held that it is not incorrect for an advocate clerk to file an affidavit in support of the application for the restoration of the suit, as he is entitled to state the facts relating to the dismissal of the suit, by way of an affidavit.

The learned counsel had also relied on the decision of this Court, reported in P.Ranu Vs. P.Krishnan (2000 AIHC 4797 Mad.), wherein, it had been held that an affidavit of the advocate clerk is sufficient for the restoration of a suit, which had been dismissed on account of the lapse on the part of the petitioners'' clerk in noting the date of the hearing of the suit. He had also placed reliance on the decision of this Court, reported in Saptharishi, L.C. Vs. E.D.Balasubramaniam (2000 1 L.W. 130), wherein, it had been held that any person, who is conversant with the facts of the case and who is a witness to what had transpired, is competent to file an affidavit.

The learned counsel appearing on behalf of the respondent had relied on the decision, reported in Muneshwari Devi Vs. Jitan Singh, , to state that even an oral prayer for condonation, u/s 5 of the Limitation Act, is permissible. He had further stated that the dismissal of an application for restoration of a suit dismissed for default is to be entertained even if there is a substantial delay in the filing of the said application, since, the dismissal of the said application would amount to denial of an opportunity of the petitioners to prosecute the suit itself, wherein, substantial rights are at stake. In support of the said contention he had relied on the decision, reported in K.Varadarajan Vs. K.Mani ( AIR 2004 NOC 340 MAD).

In view of the averments made by the learned counsels appearing on behalf of the petitioners, as well as the respondent and on a perusal of the records available and considering the decisions stated supra, this Court is of the considered view that the present civil revision petition is devoid of merits. The learned counsel appearing on behalf of the petitioners has not been in a position to show that the filing of an affidavit by an advocate clerk, in support of an application for restoration of the suit, is impermissible in law. Further, the objections raised by the petitioners against the order of the Principal District Munsif, Tiruchendur, dated 6.4.2009, allowing the interlocutory application, in I.A.No.19 of 2007, is hypertechnical in nature.

It is also seen that, even though the affidavit had been filed by the advocate clerk, the petition had been signed by the counsel, who had appeared on behalf of the plaintiff in the suit, who is the respondent in the present civil revision petition. In such circumstances, the contentions raised on behalf of the petitioners cannot be countenanced. The Principal District Munsif Court, Tiruchendur, is directed to hear and dispose of the suit, in O.S.No.16 of 2001, in accordance with law, as expeditiously as possible, not later than six months from the date of receipt of a copy of this order. No costs. The Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.