- (1.)Civil Revision Petition is directed against the order and decretal order made in I.A. No. 50 of 2012 dated 30.08.2012 in AS. No. 18 of 2009 on the file of the learned Principal District Judge, Villupuram, dismissing the application filed for restoration of an appeal. Material on record discloses that a suit in O.S. No. 240 of 2003, has been filed by the respondents, for partition in respect of their 2/3 share in the suit schedule properties, for mesne profits and for other reliefs. Upon contest, the learned Principal District Judge vide judgment and decree dated 24.06.2004, has granted the relief that the plaintiffs Eromia and Appavoo are entitled to 1/3 share each, in the suit schedule property. The trial Court has not granted the relief of mesne profits. Being aggrieved by the same, the 1st defendant has filed an appeal on the file of the learned Subordinate Judge, Villupuram in the year 2006. The seal affixed on the memorandum of grounds of appeal shows that the appeal papers were received by the learned Subordinate Judge, Villupuram on 16.11.2004. The appeal seemed to have been numbered in the year 2006 as A.S. No. 109 of 2006. The appeal has not been disposed of for nearly three years till 2009 and that the same has been transmitted to the learned Principal District Judge, Villupuram and renumbered as A.S. No. 18 of 2009. The said appeal has been posted in the list on 03.08.2009 and at the instance of the appellant, it has been adjourned to 04.08.2009. There was no representation on 04.08.2009. Hence, it came to be dismissed for default on 04.08.2009, which constrained the revision petitioner/appellant to file an application to restore the appeal, which has been dismissed for default. Accordingly, the revision petitioner/appellant has filed two applications, viz., I.A. No. 34 of 2011 to condone the delay of 222 days in filing an application to set aside the order of dismissal and I.A. No. 109 of 2011, to restore the appeal, which was dismissed on 04.08.2009 for default.
(2.)Material on record discloses that by order dated 13.09.2011, the applications have been ordered on payment of cost of Rs. 1,000/-. Again when the appeal was listed on 07.02.2012, the matter was not represented on 07.02.2012. Hence, the learned Principal District Judge, Villupuram has dismissed the appeal for default. Therefore, the revision petitioner/appellant has filed another application under Section 41 Rule 19 of Code of Civil Procedure to restore the appeal, which was dismissed for default on 07.02.2012.
(3.)Material on record discloses that the reason assigned by the revision petitioner/appellant was that on 14.01.2012, when he was riding a motorcycle, he met with an accident and that he was taking treatment in a private hospital at Thiruvananthapuram and that therefore, he could not meet his counsel and instruct him to conduct the appeal. After recovery from illness, he was informed of the dismissal of the appeal for default. In the above said circumstances, in the supporting affidavit filed for restoration of the appeal, which was dismissed for default on 07.02.2012, he has submitted that his absence was neither wilful nor wanton, and hence sought for restoration.