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2009 DIGILAW 2485 (MAD)

S. Arokiasamy v. M. Sampoornam

2009-07-20

M.VENUGOPAL

body2009
Judgment :- The revision petitioner/defendant/appellant has filed this present civil revision petition as against the order dated 210. 2007 made in I.A.No.26 of 2007 in numbered appeal suit of 2007 passed by the learned Principal District Judge, Vellore in dismissing the application filed by the petitioner under Section 5 of the Limitation Act praying to condone the delay of 63 days in preferring the appeal. .2. The appellate Court, while passing orders in I.A.No.26 of 2007 has among other things observed that the revision petitioner was suffering from Jaundice and taking rest is only skeleton evidence with proof and substantial material for the delay caused and as per the dictum of the Honble Supreme Court, each and every day delay has to be properly, aptly and transparently to be explained. But there is no proper, sufficient and apt reasons mentioned in the application to condone the delay of 63 days in preferring the appeal and resultantly dismissed the said application without costs. 3. According to the learned counsel for the revision petitioner, the revision petitioner is a senior citizen aged about 64 years of means and he has been taking treatment from native doctor and has been advised to take complete rest and if the delay is not excused then the revision petitioners valuable right will be affected and as a matter of fact, the appellate Court should have allowed the application by providing an opportunity to the revision petitioner to contest the main case on merits. But unfortunately, the same has not been done by the appellate Court which has resulted in miscarriage of justice and therefore prays for allowing the revision petition in the interest of justice 4. Notice has been served on the respondent as early as on 7. 2008 but there has been no appearance on his side before this Court either in person or through a counsel. 5. This Court has heard the submissions of the revision petitioner and noticed the same. 6. In the affidavit in I.A.No.26 of 2007, the revision petitioner has averred that the main case has been disposed of on 8. 2008 but there has been no appearance on his side before this Court either in person or through a counsel. 5. This Court has heard the submissions of the revision petitioner and noticed the same. 6. In the affidavit in I.A.No.26 of 2007, the revision petitioner has averred that the main case has been disposed of on 8. 2005 and that the revision petitioner has been suffering from jaundice and he has taken treatment from native doctor, who has advised him in turn to take complete rest for two months and therefore he has not in a position to contact his advocate and to obtain the Judgment and decree and also not able to prefer an appeal well within the time prescribed but there is an occasioned delay of 63 days in projecting the appeal and the same is to be condoned. .7. In the counter filed by the respondent before the appellate Court, it is mentioned that the petitioner has not produced any medical certificate to show that he has been suffering from Jaundice and further that the execution petition has been filed after the decree being passed in the suit and that the petitioner has come forward with the application for condonation of delay of 63 days in preferring the appeal and that there is no explanation for each and every day delay, which is fatal to the case of the petitioner and in short there are no merits in the application and has prayed for dismissal of the same. 8. The appellate Court, while dismissing I.A.No.26 of 2007 has taken a view that in regard to the petitioners suffering from Jaundice, there is only a skeleton averments without any proof and substantial material that the delay has occasioned and also that in the application, no proper, sufficient, apt reason has been described to excuse the delay and ultimately dismissed the said application. 9. 9. A perusal of the plaint shows that the main suit O.S. No.30 of 2004 has been filed for partition directing the revision petitioner/defendant to divide the suit properties into equal share with metes and bounds and to allot ½ share to the plaintiff , failing which to appoint a Court Commissioner to divide the suit property into equal shares and to allot ½ share to the plaintiff and to put him in possession and also directing the defendant to pay the mesne profits from 211. 2001 until she put in possession by way of separate proceedings. 10. The words sufficient cause occurring in Section 5 of the Limitation Act has to be construed in a meaningful and a liberal way to secure the ends of justice. In fact the Court of Law should not adopt a pedantic approach while dealing with the application for condonation of delay. By refusing to condone the delay, there is a possibility of meritorious matter being thrown out at the threshold stage and the cause of justice being defeated. Per contra, the highest thing that can happen is, if the application is allowed then the party will be given an opportunity to contest the main case on merits and a cause will be decided. In deed a deliverance of substantial cause will have to be preferred overriding technicalities in the considered opinion of this Court to advance the cause of justice. As a matter of fact, the length of delay is not a material. The Judiciary is respected one not on account of its power to legalise injustice on technical grounds but to remove the same. .11. As far as the present case is concerned, even though, the revision petitioner has averred that he has been suffering from Jaundice which has resulted in 63 days delay in preferring the appeal for which admittedly no material documentary proof has been filed by him before the appellate Court in I.A.No.26 of 2007 since the substantial justice has to be delivered to the party, this Court by taking a liberal view, allows the revision petition in the interest of justice so that an opportunity is given to the revision petitioner to take part in the proceedings of the suit to prevent an aberration of justice. 12. 12. In the result, the civil revision petition is allowed and the order passed by the appellate Court in I.A.No.26 of 2007 is set aside. Considering the facts and circumstances of the case, there will be no order as to costs.