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2008 DIGILAW 552 (MAD)

Masilamani Naicker v. Panchalai Amma

2008-02-15

A.C.ARUMUGAPERUMAL ADITYAN

body2008
Judgment :- Heard Mr. T. Arulraj, the learned counsel for the revision petitioner. There is no representation for the respondent even today. Under this revision petition, an order passed in C.M.P.No.749 of 2003 in ASSR.No.18349 of 2003 is under challenge. The said petition was filed under Order 41 Rule 3 (A) of CPC r/w Section 5 of the Limitation Act to condone the delay of 2226 days in preferring the appeal. 2. The learned counsel appearing for the revision petitioner relying on a decision reported in Radha Krishna Rai-vs-Allahabad Bank and others(2000(9) Supreme Court Cases,733) would contend that if the delay in preferring an appeal had occurred only due to the fault of the counsel concerned, the delay can be condoned. The facts of the said case are that the appellant had preferred an appeal after the delay of 1418 days. The reasoning stated in the affidavit to the petition was only due to the misrepresentation made by the counsel for the appellant, he was under the impression that the appeal had already been filed and when he lastly contacted his counsel about the progress of the case, he had not received any satisfactory information. Then he engaged another advocate and through him, he came to know that the appeal was not filed in time by the previous counsel. The exact observations made by the Honourable Apex Court are as follows: "The petitioner has been a victim of misrepresentation of facts by his own advocate and was kept under the impression that the appeal is pending before the High Court whereas no appeal was in fact filed by the advocate. It cannot be said that the appellant has not been vigilant in prosecuting the appeal. The cause shown by the petitioner is sufficient to justify condoning the delay in filing the appeal." The above fact will squarely apply to the present facts of the case. In the affidavit to the petition in C.M.P.No.749 of 2003, the petitioner has stated that the suit filed by him was dismissed on 112. The cause shown by the petitioner is sufficient to justify condoning the delay in filing the appeal." The above fact will squarely apply to the present facts of the case. In the affidavit to the petition in C.M.P.No.749 of 2003, the petitioner has stated that the suit filed by him was dismissed on 112. 1996 and immediately, he has contacted his advocate, persuading him to take steps to file an appeal and within two days, the copy of the Judgment and decree were obtained and on a perusal of the decree, it was discovered that the decree was defective and the schedule of property was omitted to be incorporated in the decree and his advocate had presented the Judgment and decree for rectification and the decree was not amended and returned on 4. 2003 and that he met his counsel thereafter for nearly 300 times but his advocate was not shown any diligence in preferring the appeal. But his advocate returned the Judgment and decree on 4. 2003 without assigning any reason and through another counsel, he preferred the appeal. 3. According to the petitioner, only due to the lapses and laches on the part of his counsel, he could not prefer the appeal in time. So the facts of the present case is similar to the facts in the case referred to above by the learned counsel appearing for the revision petitioner. Under such circumstances,I am of the vie that an opportunity must be given to the revision petitioner to pursue the appeal but on payment of cost of Rs.2000/-. 4. In fine, the civil revision petition is allowed and the order passed by the learned Principal Judge, City Civil Court, Chennai in C.M.P.No.749 of 2003 in ASSR.No.18349 of 2003 is set aside on condition, the revision petitioner pays a sum of Rs.2,000/-(Rupees Two thousand ) only towards cost to the other side on or before 22. 2008 failing which the revision shall deem to have been dismissed. With the above observation, the civil revision petition is disposed of. No costs.