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2007 DIGILAW 3553 (MAD)

C. Gurunathan v. M. Lakshmiprabha

2007-11-13

A.C.ARUMUGAPERUMAL ADITYAN

body2007
Judgment :- The defendant in O.S.No.630 of 1995 on the file of the Court of District Munsif, Gingee, is the revision petitioner herein. The plaintiff had filed O.S.No.630 of 1995 for recovery of Rs.20,000/- under a suit promissory note dated 8. 1992. The suit was decreed. Aggrieved by the findings of the learned trial Judge, the defendant had preferred an appeal before the Court of Subordinate Judge, Gingee. While preferring the appeal, an application under Section 5 of the Limitation Act was filed to condone the delay of 404 days in preferring the appeal. The said application in I.A.No.120 of 2005 in unnumbered A.S.No. -- of 2005 was dismissed by the learned first appellate Judge, which necessitated this revision. 2. The learned first appellate Judge while dismissing I.A.No.120 of 2005 filed under Section 5 of the Limitation Act has stated the following reasons for the dismissal:- The petitioner has not given sufficient reason for the delay in preferring the appeal. The reasons stated in the affidavit to the petition are not bone-fide. 3. A perusal of the affidavit filed by the revision petitioner in I.A.No.120 of 2005 in unnumbered A.S.No. -- of 2005 will go to show that he had obtained the copy of the judgment and decree in O.S.No.630 of 1995 as early as 10. 2004 itself. According to him, he sustained fracture on the left leg on 20.09.2004 and was bed ridden in the house of his son from that day onwards at Chennai. He has not stated in the affidavit that when he actually recovered from his illness. In spite of the receipt of copy of the judgment and decree in O.S.No.630 of 1995 on 10. 2004 itself, he kept quiet without taking any steps to prefer an appeal. 4. The learned counsel appearing for the revision petitioner relying on 2007(3) LW 690 (The Secretary, Madras Race Club, chennai Vs. 1.Saraswathy Kailasam, 2.Lakshmi Vaidyanathan & 3.A.S.Subbramaniam), contended that the learned Judge, who had disposed of the CRP in the above cited case had taken a lenient view in condoning the delay of 1586 days in filing the petition for restoration of the appeal. Even in the said ratio decidendi relying on a decision of the Honourable Apex Court in 1988(2) SCC 142 = 1989 (1) LW 580 (Ramegowda Vs. Even in the said ratio decidendi relying on a decision of the Honourable Apex Court in 1988(2) SCC 142 = 1989 (1) LW 580 (Ramegowda Vs. Special Land Acquisition Officer), the learned Judge has observed as follows:- "Generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bonafides is imputable to the party seeking condonation of delay." A reading of the affidavit filed by the revision petitioner/petitioner in I.A.No.120 of 2005 will clearly go to show that the petitioner was in gross negligence and deliberate in action in preferring the appeal in time even though he had received the copy of the decree and judgment as early as 10. 2004. The mere allegation in the absence of any proof that he had sustained fracture in the left leg on 20.09.2004 is not a ground to condone the delay of 404 days in preferring the appeal as rightly held by the learned first appellate Judge. I do not find any reason to interfere with the findings of the learned first appellate Judge in I.A.No.120 of 2005 in unnumbered A.S.No. -- of 2005. 5. In the result, the revision is dismissed confirming the order in I.A.No.120 of 2005 in unnumbered A.S.No. -- of 2005 on the file of the Subordinate Judge, Gingee. Connected Miscellaneous Petition is also dismissed. No costs.