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2016 DIGILAW 1355 (MAD)

V. Karnan v. T. Vivekanandhan

2016-03-30

V.M.VELUMANI

body2016
ORDER : This Civil Revision Petition has been filed against the fair and decretal order, dated 28.08.2015 made in I.A.No.128 of 2014 in unnumbered First Appeal on the file of the Subordinate Judge, Srivilliputtur. 2. The petitioner is the first defendant and the second respondent is the second defendant. The first respondent is the plaintiff in the Suit. The first respondent filed the Suit in O.S.No.130 of 2010, for declaration and recovery of the suit property from the revision petitioner and the second respondent. The said Suit was decreed exparte on 04.07.2014. The revision petitioner has filed first appeal, along with the application in I.A.No.128 of 2014 to condone the delay of 61 days in filing the appeal. According to the petitioner, subsequent to the judgment and decree, dated 04.07.2014, in O.S.No.130 of 2010, the first respondent/plaintiff misguided him that there is a possibility for mediation between them and therefore, he could not file the appeal in time. 3. The first respondent filed counter affidavit and stated that there was no cordial relationship between the first respondent and the petitioner, who are the father and son. The first respondent examined himself as RW1 and marked Ex.R1-copy of the FIR and Ex.R2-discharge summary and submitted that there was no mediation as alleged by the petitioner. The learned Judge considering the facts and materials on record, dismissed the application filed by the petitioner. Against that order, the petitoner has come up with this Civil Revision Petition. 4. The learned counsel for the petitioner submitted that the learned Judge failed to see that the petitioner has given sufficient reason for condonation of delay and the learned Judge dismissed the application without considering the reason and that delay is neither wilful nor wanton. The learned Judge ought to have given an opportunity to the petitioner to conduct the case on merits. The learned counsel for the petitioner relied on the following judgments in support of his arguments; 1. S.Ganesharaju (dead) through LRs and another vs. Narasamma (dead) through LRs and others reported in 2013 (11) SCC341, wherein in paragraph No.12, it has been held as follows; “12. The expression “sufficient cause” as appearing in Section 5 of the Limitation Act, 1963, has to be given a liberal construction so as to advance substantial justice. S.Ganesharaju (dead) through LRs and another vs. Narasamma (dead) through LRs and others reported in 2013 (11) SCC341, wherein in paragraph No.12, it has been held as follows; “12. The expression “sufficient cause” as appearing in Section 5 of the Limitation Act, 1963, has to be given a liberal construction so as to advance substantial justice. Unless the respondents are able to show mala fides in not approaching the court within the period of limitation, generally as a normal rule, delay should be condoned. The trend of the courts while dealing with the matter with regard to condonation of delay has tilted more towards condoning delay and directing the parties to contest the matter on merits, meaning thereby that such technicalities have been given a go-by.” 2. Vedabai alias Vaijayanatabai Baburao Patil vs. Shantaram Baburao Patil and others reported in 2001(9) SCC 106 , wherein in paragraph No.5, it has been held as follows: “5. In exercising discretion under Section 5 of the Limitation Act the Courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach but in the latter case no such consideration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard. The Court has to exercise the discretion on the facts of each case keeping in mind that in construing the expression 'sufficient cause' the principle of advancing substantial justice is of prime importance. In our view in this case, the approach of the learned Additional District Judge is wholly erroneous and his order is unsustainable. It is evident that the discretion under Section 5 of the Limitation Act is exercised by the Additional District Judge in contravention of the law laid down by this Court, that the expression 'sufficient cause' should receive liberal construction, in catena of decisions (see State of West Bengal v. The Administrator, Howrah Municipality & Others, [1972] 1 SCC 366 and Smt. Sandhya Rani Sarkar v. Smt Sudha Rani Debt & Others, [1978] 2 SCC 116). The High Court in exercising its jurisdiction under Section 115 C.P.C. failed to correct the jurisdictional error of the Appellate Court.” 3. Poonamand others vs. Harish Kumar and another reported in 2010 (2) MWN (Civil) 216, wherein in paragraph No.15, it has been held as follows; “15. In the facts of this case it is clear that of all the three ladies, who were the appellants, one of them was pursuing the case and she fell sick. Therefore, she was not in a position to pursue the legal remedy with due diligence as a result of which the appeal was filed with a delay of 63 days. The delay of 63 days is not a delay for a long period and there has been some explanation for the delay. The High Court should have, before passing the impugned judgment, considered the explanation for the delay along with the facts of the case, the position of the parties, the nature of the litigation and the period of delay. The High Court should also have considered that it has been settled by a catena of cases that, unless the delay is gross, an explanation for the same should be liberally construed. It appears that the High Court has not been able to consider all these relevant facts in their correct perspective before passing the impugned order.” 5. The learned counsel appearing for the first respondent submitted that after passing the decree, the petitioner assaulted the first respondent, who is his father and caused injury. The first respondent gave police complaint, against the petitioner and was taking treatment as in-patient. The petitioner has falsely stated that there was a chance for mediation, which caused the delay in filing the appeal. 6. Heard the learned counsel on either side and perused the materials available on record. 7. From the materials, it is seen that the first respondent and the petitioner are the father and the son. There are various litigation between the first respondent and the petitioner and another suit was filed by the first respondent and his wife, in O.S.No.346 of 2007, against the petitioner and the same was settled between the parties by way of mediation, on 14.12.2007. In the circumstances, the petitioner filed the appeal, along with the petition to condone the delay of 61 days. According to the petitioner, the delay occurred, as there was mediation to settle the matter. In the circumstances, the petitioner filed the appeal, along with the petition to condone the delay of 61 days. According to the petitioner, the delay occurred, as there was mediation to settle the matter. It is well settled that length of delay is not a criteria and the attitude of the petitioner must be bonafide and sufficient cause must be shown for the delay. In the circumstances, I am of the view that an opportunity must be given to the petitioner to decide the case on merits. 8. Further, the learned counsel for the petitioner submitted that this petition may be allowed on payment of cost. The learned counsel for the first respondent also submitted that the suit was decreed exparte and that the petitioner filed I.A.No.1576 of 2014, in the lower Appellate Court, to set aside the exparte decree, on the same ground. That application was also dismissed. Subsequently, he filed the appeal, along with the petition, to condone the delay of 61 days in filing the appeal. 9. Taking into consideration that the litigation is between father and son and there was settlement of earlier suit by mediation, the delay in filing can be condoned by awarding cost to the respondent. In the result, this Civil Revision Petition is allowed on condition that the petitioner pays a sum of Rs.5,000/-as cost to the respondent, within four weeks from the date of receipt of a copy of this order. 10. On such payment, the learned Subordinate Judge, Srivilliputtur, is directed to number the first appeal and decide the matter on merits and in accordance with law. Consequently, connected miscellaneous petition is closed.