PONNUSAMY POOSARI Vs. NALLAN POOSARI

JUDGEMENT

(1.) THIS Civil Revision Petition is filed under Section 115 of the Code of Civil Procedure, challenging the decree dated 29.3.2004 made in C.M.A. No.13 of 2003 on the file of Sub-Court, Pattukottai, confirming the fair and decretal order passed in I.A. No.45 of 2003 in O.S. No.138 of 1996 dated 8.9.2003 on the file of the District Munsif-cum-Judicial Magistrate Court, Orathanadu.

(2.) THE petitioners/plaintiffs filed the above Suit for declaration and injunction. THE said Suit was dismissed for default on 29.10.2001. I.A. No.45 of 2003 was filed before the District Munsif-cum-Judicial Magistrate Court, Orathanadu, to restore the Suit by contending that the Suit was posted on 29.10.2001 and at that time the second petitioner contested for the post of Panchayat President and thereafter he was looking after his father, who was taking treatment at Chennai and immediately on knowing the fact on 28.1.2002 about the dismissal of the Suit on 29.10.2001, the restoration Application was filed.

(3.) THE said orders rejecting the request for restoration is challenged in this Civil Revision Petition on the ground that on 29.10.2001 the second petitioner, who was conducting the case could not appear due to the ill-health of his father, who was aged 75 years at that time and during the second and third week of October, 2001, he was busy with the Panchayat election work and therefore he could not contact his counsel to ascertain the date of hearing and as such there was communication gap and therefore he was unable to attend the Court on 29.10.2001. It is also stated in the ground that the second petitioner having been elected as Panchayat President, he took charge of the Thilagainathi Panchayat on 25.10.2001. It is further stated that originally the Suit was posted for trial on 22.10.2001 and the said date being Duserah holiday; the Trial Court posted the case to 29.10.2001, which was not noticed by the counsel for the petitioner.