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2014 DIGILAW 3559 (MAD)

Gomathi Amma v. Lalithambika

2014-09-23

V.M.VELUMANI

body2014
Judgment 1. This Civil Revision Petition has been filed to set aside the fair and decretal order, dated 21.11.2011, passed by the learned District Judge, Kanniyakumari at Nagercoil, made in I.A.No.127 of 2010 in A.S.No.133 of 2004. 2. The petitioner is the first defendant, whereas the respondents are the plaintiffs and the petitioner's husband viz., Sukumaran Nair, is the second defendant in the suit in O.S.No.44 of 1995 on the file of Subordinate Court, Kuzhithurai. 3. The respondents filed the suit in O.S.No.44 of 1995, for specific performance of contract, directing the petitioner to execute the sale deed in respect of the suit schedule properties and for other reliefs. After contesting the suit, the suit was decreed, by the Judgment and Decree, dated 30.01.2004. Against the Judgment and Decree, the petitioner filed A.S.No.133 of 2004 on the file of Principal District Court, Nagercoil. Her husband/second defendant in the suit was the third respondent in the appeal. Pending appeal, her husband died. She filed a Memo, dated 05.02.2007, to record her as the legal heir of her deceased husband/third respondent. The respondents filed objections stating that the third respondent died leaving behind his wife, the petitioner herein and the daughter Chandrika and both of them should be recorded as legal representatives of the third respondent. Therefore, the appeal was posted for taking steps to implead the legal representatives of the third respondent in the appeal. The petitioner did not take any steps to implead her daughter. The appeal was dismissed for default on 12.11.2008. 4. The petitioner filed an application in I.A.No.127 of 2010 in A.S.No.133 of 2004 to condone the delay in filing the application to restore the first appeal. 5. The petitioner explained the delay stating that she was suffering from Osteoarthritis of her left ankle from 09.07.2004 and she could not prosecute the appeal, as she was getting treatment. Her daughter is married and living with her husband. The husband of the petitioner was giving instructions to the counsel to conduct the appeal. After his demise, the petitioner could not contact the counsel to give sufficient instructions for further proceedings of appeal, as she was taking treatment from Amirtha Institute of Medical Sciences, Cochin, Kerala State, from 09.07.2004. Her daughter is married and living with her husband. The husband of the petitioner was giving instructions to the counsel to conduct the appeal. After his demise, the petitioner could not contact the counsel to give sufficient instructions for further proceedings of appeal, as she was taking treatment from Amirtha Institute of Medical Sciences, Cochin, Kerala State, from 09.07.2004. She was prevented by sufficient causes from taking steps for impleading the legal representatives of her husband, since she was suffering from illness and taking treatment and her husband, who was looking after the appeal died, the delay in filing the application for restoration has occurred. The respondents filed counter affidavit denying all the allegations made by the petitioner. The respondents stated that the petitioner was moving about various places and hence, her statement that she could not meet her counsel is not correct. Further, in another suit in O.S.No.192 of 1999, she filed an application under Section 5 of the Limitation Act that she was suffering from rheumatism since 1982. Therefore, they prayed for dismissal of the said Interlocutory Application. 6. Before the District Court, the petitioner herself was examined as P.W.1 and Ex.P1 was marked. On behalf of the respondents, the second respondent was examined as R.W.1 and Exs.R1 to R3 were marked. 7. The learned Judge considering the pleadings, materials on record, Judgments relied on by the learned counsel for the parties and the arguments of the learned counsel for the petitioner as well as the respondents, dismissed the application. Against the said order of dismissal, the present civil revision petition has been filed. 8. Heard Mr.K.N.Thampi, learned counsel appearing for the petitioner and Mrs.J.Anandhavalli, learned counsel appearing for the respondents. 9. The learned counsel for the petitioner as well as the respondents reiterated the averments made in the affidavit as well as in the counter affidavit. 10. Against the said order of dismissal, the present civil revision petition has been filed. 8. Heard Mr.K.N.Thampi, learned counsel appearing for the petitioner and Mrs.J.Anandhavalli, learned counsel appearing for the respondents. 9. The learned counsel for the petitioner as well as the respondents reiterated the averments made in the affidavit as well as in the counter affidavit. 10. To substantiate his case, the learned counsel for the petitioner relied on the following Judgments: (i) A.Syed Hakim and others v. K.S.Maideen and another [ 2012 (1) CTC 801 ] (ii) K.Thirumurthy and another v. Muthammal and others [ 2003 (3) MLJ 369 ] (iii) Ram Nath Sao alias Ram Nath Sahu and others v. Gobardhan Sao and others [2002 (2) MLJ 85 (SC)] (iv) Devi and others v. K.Jayaraman [ 2001 (1) MLJ 231 ] (v) Malkiat Singh and another v. Joginder Singh and others [1998 (1) LW 9] (vi) Collector, Land Acquisition and another v. MST Katiji and Others [ 1987 (2) SCC 107 ] 11. Per contra, to substantiate her case, the learned counsel for the respondents relied on the following Judgements: (i) C.Raghupathy v. C.Govindan and others [ 2009 (1) CTC 319 ] (ii) G.Jayaraman v. Devarajan [ 2007 (3) LW 1034 ] (iii) Rathinathammal v. Muthusamy and others [ 2004 (3) MLJ 36 ] 12. All these Judgments, repeatedly referred to and relied on by the learned counsel for the parties for and against condonation of delay. In these Judgments, the Apex Court as well as this Court and the various High Courts have held that the length of delay is not the criteria and the reason given for condonation of delay is bona fide one and sufficient to condone the delay. The condonation of delay is the discretion of the Court and the said discretion must be exercised judicially. The Court must be liberal in considering to condone the delay and should not shut down the parties at the threshold itself preventing from putting forth their case. At the same time, the Courts must consider whether the reason given by the parties are mala fide with a view to drag on the proceedings or not. The Courts must also taken into consideration any right that would have accrued to the opposite party. 13. The application filed by the petitioner must be considered taking note of the above well settled principles. The Courts must also taken into consideration any right that would have accrued to the opposite party. 13. The application filed by the petitioner must be considered taking note of the above well settled principles. The petitioner has stated that she is suffering from Osteoarthritis from 09.07.2004 and was taking treatment in Amrita Institute of Medical Sciences, Cochin, Kerala State. Further, only her husband looking after the legal proceedings, by giving instructions to the counsel. Her daughter is married and living with her husband. The petitioner herself examined as P.W.1 and marked medical certificate, dated 23.03.2010. The second respondent was examined as R.W.1 and marked Exs.R1 to R3. From the evidence of the petitioner and the medical certificate produced by her, it is seen that she is suffering from Osteoarthritis from 09.07.2004. 14. The learned counsel for the respondents disputed the same and pointed out that the Tablets prescribed are common Calcium and Vitamin Tablets. 15. From the materials on record and the evidence of the petitioner and applying the principles laid down in various Judgments referred to above, it is clear that the petitioner has given sufficient reasons to condone the delay in filing the petition to restore the appeal. The petitioner is entitled to an opportunity to prosecute the appeal on merits. 16. For the above reasons, the order of the learned District Judge, Kanniyakumari at Nagercoil, dated 21.11.2011 made in I.A.No.127 of 2010 in A.S.No.133 of 2004, is set aside and the delay in filing the petition to restore the appeal is condoned. The civil revision petition is allowed accordingly. No costs.