Pavayammal v. S.N. Chockalingam

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 28.07.2009CORAM:THE HONOURABLE MR. JUSTICE M. VENUGOPALC.R.P.(N.P.D) No.2214 of 2008 and M.P. No.1 of 20081.Pavayammal2.Moorthy....Petitioners/Defendants 1 and 2Vs.1.S.N. Chockalingam2.S.N. Arumugam3.S.N. Venugopal4.The state of Tamil Nadu rep. By itsDistrict Collector,Erode District, Erode.....Respondents/Plaintiffs 1 to 3 and 3rd defendantPRAYER: This Civil Revision Petition is filed under Section 115 ofC.P.C., against the order and decreetal order made in I.A.No.222/2006 in A.S. No. unnumbered/200 on the file of the I AdditionalDistrict Judge Court at Erode dated 4.9.2007 in dismissing thepetition seeking condonation of 721 days delay in filing appeal.For Petitioners:Mr. V. BalamuruganeFor Respondents:Mr. S. Kaithamalai for RR 1 to 3For M/s.A.K.KumarasamyFor 4th respondent : No appearanceO R D E RThe revision petitioners/petitioners/defendants have filedthis civil revision petition as against the order dated 4.9.2007 inI.A. No. 222 of 2006 in unnumbered A.S. passed by the learned firstAdditional District Judge, Erode in dismissing the applicationfiled by the revision petitioners under Order 41 Rule 3(A) of CivilProcedure Code praying to condone the delay of 721 days inpreferring the appeal.2.The trial court, while passing orders in I.A. 222 of 2006dated 4.9.07, has opined that "the first revision petitioner/firstappellant has not proved by way of documentary evidence in regard https://hcservices.ecourts.gov.in/hcservices/ to the fact that he has been ill for three or four months andfurther that the said application has been filed only to protractthe proceedings as long as possible and consequently dismissed theapplication."3.The learned counsel for the revision petitioners submitsthat the revision petitioners/defendants are residents of remotevillage and moreover, the first revision petitioner who has pursuedthe litigation is an illiterate and also that the reasons assignedin the affidavit in I.A. No.222 of 2006 are convincing one and as amatter of fact, the trial Court has not dealt with the applicationfor condonation of delay in a liberal manner and this resulted inmiscarriage of justice which requires an interference by this courtand therefore, prays for allowing the civil revision petition.4.Contending Contra, the learned counsel for the firstrespondent and the third respondent submits that there is no proofin regard to the fact that the first revision petitioner has beensuffering with heavy fever and she has taken three to four monthstreatment etc., and that the petitioners have not made out the casefor allowing the civil revision petition and in fact the trialCourt has passed a detailed order by not accepting the reasonsmentioned in the affidavit in I.A. No.222 of 2006 and therefore,the said order is not to be disturbed by this court.5.It is to be borne in mind that in the affidavit in I.A. No.222 of 2006 filed by the first revision petitioner it is mentionedthat "after her evidence in the suit she had returned back to herhouse and expected a Judgment from the Court and in the meantime,due to old age and suffering from fever she has been forced to taketreatment for about three to four months and only in the 4th week ofJune 2004 she met her counsel and enquired about the position ofher case etc.6.In the counter filed by the first respondent before thetrial Court, it is averred among other things that the revisionpetitioner has to explain each and every days delay of 721 days inpreferring the appeal. The second revision petitioner is the sonof the first revision petitioner and he is hale and healthy and thesecond revision petitioner has to prove that he is also not able towork due to ill-health and that the revision petitioner haveencroached the suit property of about 335 feet on the eastern sideetc.7.The word 'sufficient cause' under Section 5 of theLimitation Act will have to be interpreted in a purposeful andmeaning way. As a matter of fact, the Court of law is not supposedto adopt a pedantic approach instead it has to take a liberal viewwhile dealing with the application of condonation of delay. https://hcservices.ecourts.gov.in/hcservices/ Ordinarily a party does not stand to gain by lodging in appealbelatedly. Refusing to condone a delay will result in meritoriousmatter being thrown out at the nascent stage and thereby the causeof justice being defeated. On the other hand, if a party is allowedto enter into the scene of main proceedings, then the matter can bedecided on merits. Of course a Court of law providing dueopportunities to the parties to prove their case. The judiciary isrespected not on account of its power to legalise injustice ontechnical grounds but it is capable of removing injustice and isexpected to do so. This Court is of the considered view thatsubstantial justice will have to be delivered to the partiesoverriding technicalities.8.Be that as it may, as far as the present case is concerned,even though the petitioners have not satisfactorily explained inregard to the delay of 721 days in preferring an appeal to thesatisfaction of this court, yet by taking a liberal view and toprovide an opportunity to the revision petitioners, this Courtallows the civil revision petition subject to a condition that therevision petitioners shall pay a sum of Rs.2,750/- directly to thelearned counsel appearing for the respondents 1 to 3 on or before05.08.2009, failing which the petition shall stand automaticallydismissed without any further reference.9.In fine, the Civil Revision Petition is allowed, leavingthe parties to bear their own costs. The order passed by the trialCourt in I.A. No. 222 of 2006 in A.S.No. unnumbered of 200 is setaside for the reasons assigned by this Court in this revision. Therevision petitioners are directed to pay a sum of Rs.2,750/- ascosts to the learned counsel for the Respondents 1 to 3 on orbefore 05.08.2009 failing which the petition shall standautomatically dismissed without any further reference. The FirstAppellate Court is directed to number the appeal immediately withinone week from the date of receipt of copy of this order and aftertaking the appeal on its file is directed to dispose of the samewithin 3 months thereafter and to report compliance before thisCourt. The Registry is directed to transmit the recordsimmediately to the first Appellate Court. Consequently, connectedmiscellaneous petition is closed.prmSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The I Additional District Judge Court, Erode,2.The Sub Assistant Registrar (Judicial)High Court Madras (To watch & report)Madras.3.The Record Keeper VR Section, High Court, Madras.+ 1 cc to Mr. A.K. Kumarasamy, Advocate, SR No.35140+ 1 cc to Mr. V. Ayyadurai, Advocate, SR No.32699MBS(CO)SR/14.8.2009C.R.P (N.P.D) No.2214 of 2008 And M.P. No.1 of 2008