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2012 DIGILAW 2656 (MAD)

K. v. Anantha Narayanan VS K. G. Radha Krishnan

2012-06-26

G.RAJASURIA

body2012
Judgment :- 1. Heard both sides. 2. Animadverting upon the order dated 06.01.2004 passed by the learned Principal District Judge, Dharmapuri in I.A.No.104 of 2003 in unnumbered A.S.... of 2003, this civil revision petition has been focussed. 3. The germane facts in a few broad strokes can be encapsulated thus: The respondent No.1- K.G.Radha Krishnan filed the suit in O.S.No.161 of 1990 as against three defendants viz., the two revision petitioners herein and R2-Natarajan. After contest, the trial court decreed the suit awarding compensation in a sum of Rs.2 lakhs. Since pendentelite interest as well as post decreetal interest was not awarded, the plaintiff himself preferred appeal in A.S.No.44 of 2002 for the limited purpose of getting such interest referred to supra. During the pendency of the said appeal, the revision petitioners 1 and 2 herein, being defendants preferred I.A.No.104 of 2003 to get the delay of 4 days condoned in filing the appeal challenging the findings in the suit on merits The appellate court condoned the delay subject to the condition that the revision petitioners herein should deposit the entire decreetal amount as per the decree of the lower court within two months, failing which, the said application would stand dismissed. 4. Being aggrieved by and dissatisfied with the said order, this revision is focussed on various grounds. 5. The learned counsel for the revision petitioners would put forth and set forth his arguments, which could succinctly and precisely be set out thus: The condition imposed by the lower court is against law and for condoning the delay of 4 days, mandating the revision petitioners/defendants to deposit the entire decreetal amount, was unconscionable. Accordingly, he would pray for setting aside the condition imposed by the lower court. 6. Whereas the learned counsel for the first respondent/plaintiff would submit that this is a pathetic case in which, due to medical negligence of the defendants, the plaintiff, the then young lawyer was made to suffer and hence, the lower court thought fit to impose such condition while condoning the delay of 4 days. 7. The fact also remains that in the meanwhile, the said appeal was allowed by the appellate court awarding 6% interest from the date of suit till realisation. As against which, the same revision petitioners preferred second appeal in S.A.No.1043 of 2007 also before this court. 8. 7. The fact also remains that in the meanwhile, the said appeal was allowed by the appellate court awarding 6% interest from the date of suit till realisation. As against which, the same revision petitioners preferred second appeal in S.A.No.1043 of 2007 also before this court. 8. Now, this civil revision petition alone is being taken up for disposal as requested on both sides. 9. The point for consideration is as to whether the imposition of such condition by the appellate court to the effect that the entire decreetal amount as contemplated in the decree passed by the lower court should be deposited as a sine qua non for getting the appeal numbered is tenable under the law and whether it is justified in the facts and circumstances of this case? 10. At the outset itself, I recollect and call up the recent decision of the Hon'ble Apex Court reported in 2010(2) Supreme 115 (Oriental Aroma Chemical Industries Ltd., vs. Gujarat Industrial Development Corporation and another) and an excerpt from it would run thus: "8. ............The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and other similar statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and other similar statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate - Collector, Land Acquisition, Anantnag v. Mst.Katiji, (1987) 2 SCC 107 , N.Balakrishnan v. M.Krishnamurthy, (1998) 7 SCC 123 and Vedabai v. Shantaram Baburao Patil, (2001) 9 SCC 106 . ..........................." 11. One other decision of the Hon'ble Apex Court reported in AIR 2002 SC 1201 (Ram Nath Sao alias Ram Nath Sahu and aothers v. Gobardhan Sao and others) also could fruitfully be cited; certain excerpts from it would run thus: "13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the Court should lean against acceptance of the explanation. While condoning the delay, the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses." (emphasis added) A mere poring over and perusal of the decisions of the Hon'ble Apex Court would leave no doubt in the mind of the court that if the delay is meagre as in this case, deep scrutiny is not warranted and an opportunity has to be given to the aggrieved party to prefer appeal and the appeal remedy is an essential one as per CPC. It is ex facie andprima facie clear that while condoning the meagre delay of 4 days, imposition of such onerous condition to the effect that the entire decreetal amount to be deposited, is not tenable. 12. It is ex facie andprima facie clear that while condoning the meagre delay of 4 days, imposition of such onerous condition to the effect that the entire decreetal amount to be deposited, is not tenable. 12. The learned counsel for the respondent-1/plaintiff would submit that taking into consideration the peculiar circumstances of this case the court ordered so. 13. I am of the view that there is nothing to indicate and exemplify that the revision petitioners herein, who happened to be the defendants, who sought to file the appeal, were in a penurious financial status or in cash strapped situation. Even if R1/plaintiff wants to get his rights safe guarded pending appeal, it is open for him to petition the appellate court to call upon the appellant to furnish security or deposit the amount as a condition precedent for proceeding with the appeal by the appellants and that is entirely a different matter and the appellate court at its discretion could pass suitable orders. The learned counsel for the plaintiff would argue that the reason cited for getting the delay condoned that the allopathy doctor/defendant was taking non-allopathic treatment was quite unbelievable. However, the learned counsel for the revision petitioners would contradict it by submitting that such taking of treatment is common in this part of the country. I would like to observe that the plaintiff has not chosen to challenge the condoning of the delay but it is the defendants 1 and 2 filed the revision challenging the onerous condition only. 14. In my considered view for condoning the delay of 4 days imposition of such condition referred to supra that the entire decreetal amount should be deposited, was not justified and accordingly, the said condition has to be set aside and it is set aside. However, taking into account the fact that this case has been pending for a long time and there was only a delay of 4 days, I would like to mandate that the revision petitioner shall pay a sum of Rs.500/- (Rupees five hundred only) as cost to the R1/plaintiff within two weeks from the date of receipt of a copy of this order and on such compliance the appellate court shall do well to see that the appeal is numbered, and taken up for hearing and disposed of within a period of one month thereafter. 15. 15. With the above direction, this civil revision petition is disposed of. No costs. Consequently, the connected miscellaneous petition is closed.