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2012 DIGILAW 3465 (MAD)

Palanisamy v. Krishnan

2012-08-03

G.RAJASURIA

body2012
Judgment :- 1. Animadverting upon the order dated 20.08.2010 and the consequential order dated 06.09.2010 passed in I.A.No.102 of 2010 in unnumbered A.S.No....of 2010 by the Hon'ble District Judge, Villupuram, this civil revision petition is focussed. 2. Heard both. 3. The epitome and the long and short of the germane facts absolutely necessary for the disposal of this revision would run thus: The respondent herein filed the suit for specific performance of the agreement to sell as against the revision petitioner herein. The suit was decreed, as against which the revision petitioner filed the A.S. with a delay of 142 days. After hearing both sides, the said application was ordered subject to the condition that cost of Rs.26,832/-found assessed in the trial Court's decree should be deposited in Court by granting time till 30.08.2010 and the matter was posted on 31.08.2010 for report of compliance. However, on that day, on the petitioner/defendant/appellant's side, an application was filed to get the time extended for complying with the order and accordingly, time was extended till 06.09.2010. Inasmuch as the cost was not paid, the petition was recorded as the one dismissed. Thereafter, this revision has been filed impugning and challenging that the condition imposed by the lower Court was onerous. 4. The learned counsel for the petitioner would implore and entreat that the matter itself is relating to specific performance of an agreement to sell relating to immovable property and because of unforeseen circumstances alone the cost could not be paid. In order to show the bona fides, in response to the High Court's order dated 15.02.2011 in CRP NPD No.422 of 2011 and M.P.No.1 of 2011, the entire cost was deposited in Court and taking into consideration the over all circumstances the delay might be condoned as such. 5. Whereas the learned counsel for the respondent/plaintiff would submit that already non judicial stamp papers were submitted to get the sale deed executed by the Court in their favour and at this juncture, if the CRP is allowed condoning the delay, then the respondent would be put to discomfiture. 6. The point for consideration is as to whether the condition imposed by the lower Court could be termed as onerous? 7. 6. The point for consideration is as to whether the condition imposed by the lower Court could be termed as onerous? 7. Normally whenever any stay is granted by the appellate Court or while condoning the delay in filing the appeal, the lower Court orders cost to be deposited and in such a case, I could see no perversity or illegality in passing of such an order. However, there was some delay in complying with the condition. Now it is clear that after the filing of the CRP, the said condition also was complied with, however belatedly. Now the short point to be decided is as to whether the was delay in complying with the order in I.A.No.102 of 2010 should be condoned or whether the dismissal of the I.A. has to be upheld. Inasmuch as appeal remedy is a substantive right of a litigant under Section 96 of CPC and time and again the Hon'ble Apex Court has also highlighted the importance of appeals, if I.A.No.102 of 2010 as dismissed by the lower Court is confirmed, certainly the revision petitioner would be precluded from canvassing his case before the appellate Court. 8. Hence having this in mind, I would like to condone the delay in complying with the condition imposed by the lower Court, subject to payment of cost of Rs.5,000/- (Rupees five thousand only) payable by the revision petitioner to the respondent, within a period of two weeks from the date of receipt of a copy of this order. On such compliance, the appeal shall be numbered, if otherwise than in order and disposed of within a period of three months thereafter. As prayed by the learned counsel for the respondent herein, the cost of Rs.26,832/- (Rupees twenty six thousand eight hundred and thirty two only) is permitted to be withdrawn by the respondent by filing appropriate application. With the above direction, this civil revision petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.