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Kolandaswami Gounder and ors. Vs. K.M. Chandran and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 2934 of 1972
Judge
Reported inAIR1973Mad430; (1973)2MLJ359
ActsCode of Civil Procedure (CPC), 1908 - Sections 115 - Order XLVII, Rule 1
AppellantKolandaswami Gounder and ors.
RespondentK.M. Chandran and anr.
Cases ReferredSukumaran v. Sulaiman Khan
Excerpt:
- - hence the petitioners herein can as well agitate their case by way of review petition or the petitioners can agitate their case by treating the petition filed by them in i......and as such the petition under section 151, c. p. c. for restoring i. a. 2123 of 1971 cannot be filed, dismissed i. a. 367 of 1972.3. aggrieved by the said order the plaintiff-petitioners in i. a. 367 of 1972 have preferred the above civil revision petition, mr. k. sarvabhauman, learned counsel for the revision petitioners brought to my notice the affidavit filed by the counsel for the petitioners herein before the trial court wherein it is stated that the counsel has wrongly noted the date of hearing. because of this wrong noting of the date, the petition was called on 7-1-1972 and the same was dismissed. in the interest of justice, it is prayed that i. a. no. 2123 of 1971 has to be restored and the petitioners be given an opportunity to pay the costs and contest the suit.4. no doubt.....
Judgment:
ORDER

1. The plaintiffs have filed this revision against the order passed by the District Munsif, Erode, refusing to restore I. A. 2123 of 1971 in O. S. No. 109 of 1969 which was dismissed on 7-1-1972. O. S. No. 109 of 1969 was dismissed after the advocate for the plaintiffs reporting no instructions. Within the time prescribed, the plaintiffs filed I. A. 2123 of 1971 for the purpose of restoring the said suit. On 17-12-1971, the ex parte order of dismissal was set aside on condition of the plaintiff's paying Rs. 25 as costs on or before 7-1-1972. The advocate for the plaintiffs has filed an affidavit in the above civil revision petition to the effect that he has noted the date as 17-1-1972, instead of 7-1-1972, with the result that the same was called on 7-1-1972 and I. A. 2123 of 1971 was dismissed.

2. In view of the fact that the court has dismissed I. A. 2123 of 1971, owing to the fact that the advocate has noted the date wrongly. I. A. 367 of 1972 was filed by the plaintiff-petitioners under Section 151. C. P. C. for the purpose of restoring I. A. 2123 of 1971. The District Munsif, Erode, holding that the court has become functus officio subsequent to the dismissal of the suit and also dismissal of I. A. 2123 of 1971, and as such the petition under Section 151, C. P. C. for restoring I. A. 2123 of 1971 cannot be filed, dismissed I. A. 367 of 1972.

3. Aggrieved by the said order the plaintiff-petitioners in I. A. 367 of 1972 have preferred the above Civil Revision Petition, Mr. K. Sarvabhauman, learned counsel for the revision petitioners brought to my notice the affidavit filed by the counsel for the petitioners herein before the trial Court wherein it is stated that the counsel has wrongly noted the date of hearing. Because of this wrong noting of the date, the petition was called on 7-1-1972 and the same was dismissed. In the interest of justice, it is prayed that I. A. No. 2123 of 1971 has to be restored and the petitioners be given an opportunity to pay the costs and contest the suit.

4. No doubt the decisions in Nasar Saheb v. Nabi Saheb AIR 1957 Andh 780 and Venkatachariar v. Moulvi Md. Fazudeen Sahib Bahadur : (1940)2MLJ374 , are against the proposition put forth by the counsel for the petitioners-plaintiffs. But in Sukumaran v. Sulaiman Khan : AIR1971Mad454 . Ramanujam J. has held that even though there cannot be any petition for extension of time or invoking the jurisdiction under Section 151. C. P. C. the parties if advised may have a chance to file a petition to review the order.

5. Mr. Sengotian, the learned counsel for the respondents has traced the history of the case and said that in spite of the purchase of the suit property some time ago the matter is being protracted and the first respondent is put to heavy loss and trouble. According to the learned counsel for the respondents the petition for extension of time or to invoke the jurisdiction of the court under Section 151, C. P. Code will not lie inasmuch as the court has become functus officio as soon as the suit has been dismissed and I. A. 2123 of 1971 to set aside the ex parte order has also been dismissed. There is no difficulty in accepting this principle by virtue of the decisions in AIR 1957 Andh Pra 780 and : (1940)2MLJ374 . But it cannot be said that the parties are left without any remedies and justice cannot be done to the party who has a genuine case to agitate the matter. I am of the view that Order XLVII, Rule 1, C. P. Code is wide enough and definitely an aggrieved party has every right to have a petition for reviewing the order passed by the court below. Hence the petitioners herein can as well agitate their case by way of review petition or the petitioners can agitate their case by treating the petition filed by them in I. A. 367 of 1972 as a review petition.

6. It is clear from the affidavit filed by the advocate that the petitioners were not able to pay the costs directed by the court in I. A. 2123 of 1971 due to the wrong noting of the date by the advocate. Since the advocate has taken the mistake on himself, it is but fair that the party should not be made to suffer because of some mistakes that had occurred in noting down the date mentioned in the order passed in I. A. 2123 of 1971.

7. With the observations the civil revision petition is allowed and the petitioners herein are permitted to amend the petition in I. A. 367 of 1967 so that the court can review the order passed in I. A. 2123 of 1971. The matter will be heard on merits by the trial Court as soon as the necessary amendment is made by the petitioners herein in I. A. 367 of 1972. The petitioners will carry out the amendment within four weeks from this date. The trial Court is further directed to dispose of the petition within a week after the amendment is carried out. There will be no order as to costs in this revision petition.

8. Petition allowed.


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