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2012 DIGILAW 2190 (MAD)

M. Ranganathan v. Radha @ Chinna Thambi

2012-06-04

G.RAJASURIA

body2012
Judgment :- 1. Heard both sides. 2. This civil revision petition is focussed as against the order and decreetal order dated 14.11.2011 passed by the learned Subordinate Judge, Gingee in I.A.No.55 of 2011 in unnumbered A.S....of 2011. 3. The facts as uncurtained in this revision could be encapsulated thus: The suit for partition was filed by the respondent/plaintiff and a preliminary decree was passed; subsequently a final decree application was also filed and it is getting processed. While so, the revision petitioner herein did choose to present the appeal memorandum along with an application to get the delay of 336 days condoned in filing the appeal as against the preliminary decree. The said delay application was dismissed after hearing both sides. Being aggrieved by and dissatisfied with the same, this civil revision petition has been focussed on various grounds. 4. The learned counsel for the revision petitioner would submit that the appellate court while dismissing the application misconstrued the facts and consequently misapplied the law. In fact, the appeal memorandum was presented on 21.01.2011 and since the decree was got lost by the petitioner a fresh decree was obtained and it was filed thereafter. However, the appellate court construed as though the appeal was presented long after the Commissioner's report and sketch were marked during the final decree proceedings, which was not correct factually. 5. Placing reliance on the averments in the affidavit accompanying the petition for getting the delay condoned, the learned counsel for the petitioner would submit that the petitioner in a bid to get a legal opinion from an Advocate, visited Madras and during his stay thereat, he was constrained to take treatment for his health; however he got lost the legal papers and that alone resulted in the delay, which may be condoned so that the petitioner would have the opportunity of seeking redressal by prosecuting the appeal. 6. Whereas in a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the revision petitioner, the learned counsel for the respondent/plaintiff would pilot his argument, which could tersely and briefly be set out thus: a] The averments in the affidavit are ex facie and prima facie unbelievable and they are nothing but a nancy story dished out purely for the purpose of getting the delay condoned by hook or by crook. b] The appeal memorandum was presented on 27.01.2011 and there is nothing to indicate and exemplify as to what prevented the petitioner from getting it numbered even before the petitioner participated in the final decree proceedings. As such, after exhausting his opportunities, in the final decree proceedings, as an after thought and in an attempt to dilly-dally and shilly-shally with the matter and to protract the proceedings, he had chosen to press for getting the delay condoned in filing the appeal and in that attempt, he failed, for which, the petitioner does not deserve any sympathy from this court. Accordingly, he would pray for the dismissal of the civil revision petition. 7. The points for consideration are as under: 1. Whether the delay of 336 days can be condoned in filing the appeal memorandum? 2. Whether the appellate court unjustifiably failed to give an opportunity to the petitioner to get his appeal processed as per law? 8. No doubt, the appellate court assumed and presumed as though the appeal memorandum was presented after the Commissioner's report and sketch having been marked as Ex.C1 and C2 in the final decree proceedings. The Commissioner's report and sketch emerged long after the presentation of the appeal on 27.01.2011. As such, on that score, the appellate court may not be correct factually. Even then, the petitioner is duty bound to explain as to what prevented him from getting the said appeal numbered after getting the delay condoned. It is also quite obvious that the decree was obtained only after the presentation of the appeal memorandum along with the application to get the delay condoned. However, the certified copy of the judgment was obtained earlier. The explanation given by the petitioner is that he got lost the certified copy of the decree, which he obtained earlier. 9. Now the core question arises as to whether the petitioner could be given an opportunity of prosecuting the appeal after getting the delay condoned. 10. This is a partition suit between brothers. No doubt, the appeal could have been filed by the revision petitioner much earlier; however for the reasons stated by him in the affidavit, he could not file it in time. 10. This is a partition suit between brothers. No doubt, the appeal could have been filed by the revision petitioner much earlier; however for the reasons stated by him in the affidavit, he could not file it in time. What I could see from the records is that he had not deliberately delayed the filing of the appeal because, he presented the appeal on 21.01.2011 or 27.01.2011, and before getting the application numbered obviously and axiomatically he participated in the final decree proceedings and had he refrained from participating so, once again that would have proved detrimental to his interest. So far the final decree has not been passed and in the meantime, he wants redressal at the hands of the appellate court relating to the preliminary decree. 11. The argument on the side of the respondent is mainly focussed on the probable future delay. I According to the respondent, if the appeal is numbered, then certainly that would take several years together for being disposed of, I am of the view that if the delay is condoned subject to payment of cost by the petitioner and also stipulating a time limit within which, the appeal itself should be disposed of, then the apprehension in the mind of the respondent could be dispelled. The very fact that the appeal memorandum was presented on 21.01.2011 or 27.01.2011 itself bespeaks and betokens that the petitioner had the intention of getting the redressal at the hands of the appellate court and that being so, I am of the view that by compensating the respondent, an opportunity can be given to the petitioner to seek redressal at the hands of the appellate court. Wherefore, by taking a lenient view, the delay is condoned, subject to payment of cost of Rs.3,000/-(Rupees three thousand only) payable by the revision petitioner to the respondent on or before 18.06.2012 and that the appellate court shall do well to see that the appeal itself is disposed of by the end of July 2012. It is made clear that if there is any default in payment of the cost, this order will not enure to the benefit of the revision petitioner. 12. With the above direction, this civil revision petition is disposed of. No costs. Consequently, the connected miscellaneous petition is closed.