1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 31.10.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL REVISION PETITION Nos.1947 and 1948 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 Neethirajan .. Petitioner in both C.R.Ps Vs. Muthumani .. Respondent in both C.R.Ps Civil Revision Petitions have been filed under Section 115 of the Code of Civil Procedure, 1908 against the fair and decretal orders dated 10.08.2011 passed in Interlocutory Application Nos.378 and 379 of 2010 in Original Suit No.4 of 2005 by the Additional Sub Court, Dindigul. For Petitioner : Mr.H.Lakshmi Shankar in both C.R.Ps. For Respondent : Mr.G.R.Swaminathan in both C.R.Ps. COMMON ORDER These Civil Revision Petitions have been preferred against the orders passed in Interlocutory Application Nos.378 and 379 of 2010 in Original Suit No.4 of 2005 by the Additional Sub Court, Dindigul. 2. The respondent herein as plaintiff has instituted Original Suit No.4 of 2005 on the file of the Court below for the relief of specific performance, wherein the present revision petitioner and his deceased mother have been shown as defendants. In Original Suit No.4 of 2005, an ex-parte decree has been passed on 09.11.2005. In filing a petition for setting aside the ex-parte decree, there is a delay of 1420 days and in order to condone the same, the petition in Interlocutory Application No.378 of 2010 has been filed. Likewise, for the purpose of setting aside the ex-parte decree, the petition in Interlocutory Application No.379 of 2010 has been filed. The Court below after considering the rival contentions putforth on either side, has dismissed both the petitions. Against the dismissal orders passed by the Court below, these Civil Revision Petitions have been preferred at the instance of the petitioner/ second defendant as revision petitioner. https://hcservices.ecourts.gov.in/hcservices/ 2 3. The learned counsel appearing for the revision petitioner has attacked the orders passed by the Court below on the following grounds: (a) The revision petitioner and his mother have not executed the suit sale agreement and the same has been executed only as a security in favour of the plaintiff for the amount given by her and therefore in Original Suit No.4 of 2005, the revision petitioner/petitioner/second defendant is having very good defence and the Court below has failed to consider the same. (b) In Interlocutory Application Nos.378 and 379 of 2010, it has been specifically stated that the revision petitioner/petitioner/second defendant being a driver is in the habit of going outside very often and further due to demise of his mother, he has not been able to contact his advocate and the Court below has failed to consider the same. 4. In order to remonstrate the contentions putforth on the side of the revision petitioner, the learned counsel appearing for the respondent/ plaintiff has contended that in Interlocutory Application No.378 of 2010, the revision petitioner/petitioner has been examined as P.W.1 and during the course of cross-examination, he has clearly stated about his stay native place and the Court below after considering the overall evidence adduced on the side of the revision petitioner has rightly dismissed both the petitioners and therefore the orders passed by the Court below do not warrant interference. 5. As stated earlier, Original Suit No.4 of 2005 has been instituted for the relief of specific performance, wherein the present revision petitioner and his deceased mother have been shown as defendants. In Original Suit No.4 of 2005, an ex-parte decree has been passed on 09.11.2005. The petition in Interlocutory Application No.378 of 2010 has been filed under Section 5 of the Limitation Act so as to condone the delay of 1420 days. The reasons given on the side of the revision petitioner for such delay are that the revision petitioner/petitioner being a driver is in the habit of going outside frequently and due to demise of his mother, he has not been able to contact his advocate. 6. The revision petitioner/petitioner has been examined as P.W.1. During the course of cross-examination, he has stated that even though he has done his work as driver, he stayed within the limit of Tamil Nadu and further he has stated in his evidence that he has not contacted his advocate. The evidence given by the revision petitioner/petitioner is not at all sufficient to substantiate the contentions putforth on his side. Further his specific evidence is that throughout the period mentioned in Interlocutory Application No.378 of 2010, he has resided only within the limit of Tamil Nadu. If really, the revision petitioner/petitioner is having bona-fide intention so as to prosecute Original Suit No.4 of 2005, definitely he would have contacted his counsel. But his evidence is that even https://hcservices.ecourts.gov.in/hcservices/ 3 though he resided within the limit of Tamil Nadu, he has not contacted his counsel and that itself has shown his nonchalant as well as lethargic attitude. 7. The petition in Interlocutory Application No.378 of 2010 has been filed under Section 5 of the Limitation Act so as to condone the huge delay of 1420 days. As per Section 5 of the Limitation Act, proper reason must be given and established. In the instant case, even though the revision petitioner has been examined as P.W.1, his evidence is not at all sufficient to condone the huge delay of 1420 days. 8. As stated earlier, the first and foremost attack made on the side of the revision petitioner is that the revision petitioner and his mother have not executed the suit sale agreement in favour of the respondent/plaintiff with the intention to sell the suit property to her. But the same has been executed as a security. The said point cannot be agitated in the present petitions. In the present petitions the only point that has to be decided is as to whether the reason given for condoning the huge delay of 1420 days is genuine or not? It has already been discussed in detail that the evidence of the revision petitioner is not at all sufficient to accept the reasons mentioned in the petitions. 9. The Court below after considering all the contentions raised on either side has rightly dismissed Interlocutory Application Nos.378 and 379 of 2010. In view of the discussion made earlier, this Court has not found any error in the orders passed by the Court below and altogether these Civil Revision Petition deserve to be dismissed. 10. In fine, these Civil Revision Petitions deserve dismissal and accordingly are dismissed without costs and the orders passed in Interlocutory Application Nos.378 and 379 of 2010 in Original Suit No.4 of 2005 by the Additional Sub Court, Dindigul are confirmed. Consequently, connected Miscellaneous Petition is dismissed. Sd/- Assistant Registrar (RTI) /True Copy/ Sub Assistant Registrar To The Additional Sub Judge, Dindigul. +1 CC to Mr.H.Lakshmi Shankar, Advocate (SR.No.37276) COMMON ORDER MADE IN C.R.P(PD)(MD)Nos.1947 and 1948 of 2011 and M.P(MD)No.1 of 2011 31.10.2011 smn NSV/14.11.11/3P/3C https://hcservices.ecourts.gov.in/hcservices/