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2014 DIGILAW 1642 (MAD)

S. Palani v. S. Ramachandran

2014-06-23

R.KARUPPIAH

body2014
Judgment R. Karuppiah, J. 1. The revision petitioner, who is defendant in the original suit filed this revision petition against fair and decreetal order passed by the first appellate court in I.A. No. 166 of 2007 dated 13.06.2008 on the file of Principal Subordinate Court, Krishnagiri. 2. For the sake of convenience, the defendant in the original suit is referred as revision petitioner and the plaintiff in the original suit is referred as respondent hereafter. 3. The respondent herein filed a suit for recovery of money on the basis of promissory note. The revision petitioner herein filed written statement and after contest by both sides, the trial court has decreed the suit on 28.06.2004. 4. The revision petitioner preferred first appeal along with a petition in I.A. No. 166 of 2007 for condoning the delay of 1097 days in filing the appeal. But, the first appellate court has dismissed the above said petition in I.A. No. 166 of 2007 filed for condoning the delay of 1097 days in filing the first appeal. Aggrieved over the dismissal order, the revision petitioner preferred this revision petition. 5. Heard the learned counsel appearing for the revision petitioner. No appearance for the respondent. 6. The learned counsel appearing for the revision petitioner would submit that the trial court has passed the decree and judgment on 28.06.2004 and the revision petitioner counsel applied for certified copies for filing the appeal on 29.06.2004, but, no communication from the counsel with regard to obtaining copies ready. Further, the learned counsel submitted that the respondent had filed the execution petition in REP No. 27 of 2006 and the counsel for the revision petitioner sent a post card only on 18.07.2007 and immediately, the revision petitioner met the counsel and came to know about the decree passed by the trial court. The learned counsel further pointed out that the trial court counsel informed that the certified copies of the decree and judgment obtained by him for filing the appeal were misplaced and got mingled with old case bundle and as per instruction, the revision petitioner obtained the certified copies of the decree and judgment only on 26.08.2007 and therefore, the above said delay of 1097 days occurred in filing the appeal. 7. 7. The counter filed by the respondent herein in the above said petition in which, it is stated that the respondent has filed EP in REP No. 27 of 2006 after two and half years i.e., on 29.11.2006 and the revision petitioner had appeared through his same counsel on 12.01.2007 and seeking adjournment for settlement. Further, it is stated that in the revision petitioner's counter filed on 13.08.2007, in the execution proceedings, in which, the revision petitioner/defendant had admitted that his earlier counsel applied the certified copies of judgment and decree and obtained on 03.08.2004, but, the reason given by the revision petitioner as if no communication from his counsel are all false. Therefore, the delay of 1097 days is exorbitant and abnormal delay and hence, prayed for to dismiss the petition. 8. The trial court has held that the judgment and decree made ready to deliver on 03.08.2004, but, no one waited to obtain certified copies for three years. Further, the counsel appearing for the revision petitioner had appeared in the execution proceedings and filed counter, but after several adjournment, this petition has been filed and therefore, dismissed the above said petition. 9. The learned counsel appearing for the revision petitioner submitted that only on the fault of the revision petitioner's earlier counsel, the delay has been occurred and also the respondent has trying to settle the matter and on that ground also the delay has been occurred. Further, the learned counsel appearing for the revision petitioner relied on a decision of Division Bench of this Court reported in Ravi Enterprises vs. Indian Bank, 2008 (1) CTC 785 in which, in para 14 reads as under:- ''14. We are of the view that refusal to condone delay can result in a meritorious matter being thrown at the early stage and cause of justice being defeated. Moreover, the law Courts should not prefer to adopt a pedantic approach and on the other hand a pragmatic approach has to be made to deliver substantial justice overriding technical considerations as far as the present case is concerned. Furthermore, a party does not stand to benefit by adopting delay. Per contra, he runs a grave risk. It cannot gainsaid that judiciary is respected because it is capable of removing injustice and is expected to do so." 10. Furthermore, a party does not stand to benefit by adopting delay. Per contra, he runs a grave risk. It cannot gainsaid that judiciary is respected because it is capable of removing injustice and is expected to do so." 10. In the instant case, the revision petitioner has categorically stated in the affidavit that only on the fault of the petitioner's earlier counsel appeared before the trial court, the delay has been occurred. Further, the revision petitioner tried to settle the matter on that ground also, the delay has been occurred. The respondent has not appeared through counsel before this Court, in spite of the case was posted today under the caption for orders. 11. Considering the conduct of the respondent and also the reasons stated in the affidavit filed by the revision petitioner and also considering the above said decision of Division Bench of this Court, I am of the considered view that the delay is to be condoned and an opportunity should be given to the revision petitioner to file the first appeal. 12. In the result, this revision petition is allowed and the dismissal order passed by the first appellate court in I.A. No. 166 of 2007 is set aside and the above delay of 1097 days is condoned. No order as to costs. The first appellate court is directed to dispose of the appeal within a period of six months from the date of receipt of a copy of this order. Consequently, connected miscellaneous petition is closed.