THE HONOURABLE MR v. Arumugam2. Kamala3. Mohan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 19.3.2005CORAM:THE HONOURABLE MR.JUSTICE N.KANNADASAN CIVIL REVISION PETITION Nos.1818 and 1206 OF 2004and C.M.P.No.9573 OF 2004Kasipalayam Town Panchayat,rep. by its Executive Officer,Kasipalayam, Edore. .. Petitioner/petitioner in both the petitionsVs.1. Arumugam2. Kamala3. Mohan 4. Erode Municipality, rep. by its Commissioner, Erode. .. Respondents/Respondents- do -Civil Revision Petitions under Section 115 of C.P.C.,against the the common fair and decretal order dated 30.1.2004respectively made in I.A.Nos.660 and 661 of 2004 inC.F.R.No.14330 of 2001 on the file of the Principal DistrictJudge, Erode.For Petitioner: .. Mr.D.Krishnakumar For Respondents: .. Mr.S.Kaithamalai Kumaran for R1 to R3. No appearance for R4.* * *O R D E RBoth the above Civil Revision Petitions are filedchallenging the common fair and decretal order dated 30.1.2004passed in I.A.Nos.660 and 661 of 2004 in C.F.R.No.14330 of 2001by the Principal District Judge, Erode. 2. The petitioner has filed two applications seekingto condone the delay of 355 days and 358 days in representing theappeal memorandum. https://hcservices.ecourts.gov.in/hcservices/

3. The respondents have filed the suit in O.S.No.480 of1994 as early as in the year 1994 claiming damages as against thedefendants. The petitioner herein is also one of the defendants.The trial Court decreed the suit to the effect that thepetitioner as well as the fourth respondent herein shall equallyliable to pay damages to the plaintiffs. Subsequently, thepetitioner seems to have preferred appeal with deficiency ofcourt fee, which was returned for compliance. In the meanwhilewhen the plaintiffs/respondents filed Execution Petition inE.P.No.120 of 2003. The petitioner has represented the appealmemorandum along with the applications for condoning the delay of355 days and 358 days in representing the appeal memorandum. Thesaid applications were dismissed. Against which these revisionpetitions. 4. The learned counsel for the petitioner wouldcontend that the trial Court ought not to have dismissed theapplications, since the said applications are only seekingcondonation of delay to represent the appeal memorandum. Thelearned counsel would add that some reasonable costs may beimposed and the petitioner’s right for pursuing the appeal shouldnot be taken away. In this connection learned counsel for thepetitioner would rely on the decisions reported in 1993 TLNJ 375(Y.Cusbar v. K.Subbarayan), 1978 TLNJ 332 (The General Manager,Heavy Vehicles Factory, Avadi and another v. T.Shadrak) and 2004CTC 161(The Shipping Corporation of India Ltd., v. Union ofIndia).5. Per contra, the learned counsel for the respondents1 to 3 would contend that the petitioner has not even chosen toassign proper reasons for condoning the delay and there is nobona fide on the part of the petitioner. Inasmuch as the appealwas presented with deficiency of Court Fee and the suit havingbeen filed in the year 1994 claiming damages, and the decreebeing obtained in the year 2000, the plaintiffs are not in aposition to see the colour of the coin till date. In the lightof the said circumstances, he opposed to grant the relief soughtfor by the petitioner herein.6. I have considered the rival contentions of thelearned counsel for both side. Admittedly, in the affidavitfiled in support of the applications seeking condonation ofdelay, the reasons given therein are vague and casual in nature.Even though there is an enormous delay of 355 days and 358 daysin representing the appeal memorandum, the reasons assigned bythe petitioner in both the applications are identical to eachother. The very fact that the petitioner preferred appeal withdeficiency of court fee would suggest that the subsequent actionin pursuing the appeal is only to prolong the appeal to some moretime to avoid execution proceedings. The decision relied on by https://hcservices.ecourts.gov.in/hcservices/ the learned counsel for the petitioner viz., 1993 TLNJ 375 isrendered considering the fact that certain calamity took place inthe family of the Advocate’s clerk, who has sworn into theaffidavit and there was no specific denial of the claims madetherein and accordingly the delay therein was condoned. 7. Similarly, as regards the decision rendered by thelearned Judge reported in 1978 TLNJ 332 is concerned, the sameis rendered to the effect that notice is not necessary when apetition to condone the delay in representation is filed.Admittedly, the case on hand do not fall in the said category.8. Similarly, the decision reported in 2004 CTC 161proceeds to the effect that the Courts need not be strict incondoning the delay in representation. However, in the very samedecision the word of ‘caution’ is there to the effect that ‘thecourts should be cautious and examine the conduct of theparties.’ Hence, the above decision is not also applicable tothe case on hand. 9. In the instant case, the learned trial Judge hasexercised his judicial discretion by considering the entirematerials placed on record. It is needless to state that thediscretion to be exercised should be of judicial discretion.The Black’s Law Dictionary, Seventh Edition, by Bryan A.Garnerwould define “Judicial Discretion” as, “The exercise of judgment by a judge or court basedon what is fair under the circumstances and guidedby the rules and principles of law; a court’s powerto act or not act when a litigant is not entitledto demand the act as a matter of right.”The vesting of discretion is the unspoken, butinescapable, silent command of our judicial systemand according to Lord Mansfield (Tingley v. Dolby,14 NW 146), “discretion, when applied to a Court of justicemeans sound discretion connected by law. It mustbe governed by rule, not by humour; it must not bearbitrary and vague, but legal and regular.”(a) In a ruling reported in AIR 1978 SC 429(G.Narasimhulu v. Public Prosecutor), the SupremeCourt ruled, “An appeal to a judge’s discretion is an appeal tohis judicial conscience. The discretion must beexercised, not in opposition to, but in accordancewith, established principles of law.”(b) In AIR 1995 SC 1945 = 1996-1-L.W.29 (Buta Singhv. Union of India), a case arising under Section149 C.P.C., the Supreme Court while pointing outthe scope of Section 149, ruled thus, https://hcservices.ecourts.gov.in/hcservices/ “Therefore, the Court is required to exercise itsjudicial discretion keeping the facts andcircumstances in each case and not automaticallyfor mere asking that indulgence be shown to theparty to make good the deficit Court fee. In thelatter event, it is not the exercise of thejudicial discretion but showing undue indulgence.”10. In the light of the above settled principles, whileexercising the discretion, the Courts should exercise the same byfollowing the principles of judicial discretion. Admittedly, thetrial Judge has exercised the judicial discretion in accordancewith law. 11. In the light of the above facts and circumstances,I do not see any error apparent on the face of the order of thetrial Judge so as to warrant this Court to interfere with thesaid order. 12. In the result, both the Civil Revisions do notmerit acceptance and are dismissed. The common fair and decretalorder dated 30.1.2004 respectively made in I.A.Nos.660 and 661 of2004 in C.F.R.No.14330 of 2001 on the file of the PrincipalDistrict Judge, Erode is confirmed. No costs. Consequently,connected C.M.P. is also dismissed. gr.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. THE PRINCIPAL DISTRICT JUDGEERODE2. THE RECORD KEEPERVR SECTION, HIGH COURT,MADRAS+ ONE CC TO MR.A.K. KUMARASAMY, FOR M.S. KAITHAMALAI KUMARANIN SR 13394+ TWO CCS TO MR. D. KRISHNAKUMAR, ADVOCATE IN SR 13173, 13174C.R. P.NPD Nos.1818 and 1206 of 2004PSI(CO)BP/31.3.05