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2016 DIGILAW 272 (MAD)

Deepalakshmi v. Chandrasekaran

2016-01-22

M.VENUGOPAL

body2016
ORDER : 1. The Petitioner/Respondent/Wife has preferred the instant Criminal Revision Petition before this Court as against the order dated 04.12.2014 in Cr.M.P.No.3859 of 2014 (in unumbered Crl.R.C. of 2014) passed by the Learned Principal Sessions Judge, Tirunelveli. 2. The Learned Principal Sessions Judge, Tirunelveli, while passing the impugned order in Cr.M.P.No.3859 of 2014 filed by the Respondent/Petitioner/Husband, had allowed the petition (delay condonation petition) on payment of cost of Rs.1,500/- to the Revision Petitioner/Wife (Respondent) to be paid directly on or before 16.12.2014, failing which, it was ordered that the petition shall stand dismissed and directed the matter to be called on 17.12.2014. 3. Assailing the correctness, validity and legality of the order passed by the Learned Principal Sessions Judge in Cr.M.P.No.3859 of 2014, dated 04.12.2015, the Revision Petitioner/wife has focused the instant Criminal Revision Petition before this Court (as an aggrieved person) mainly contending that the claim of the Respondent/Husband (Petitioner in Cr.M.P.No.3859 of 2014) that there was only a delay of 20 days in preferring the Criminal Revision by him for enhancement of sentence against the judgment of conviction dated 02.02.2010 passed by the Learned Judicial Magistrate No.1, Tirunelveli is factually an incorrect one. 4. The Learned Counsel for the Revision Petitioner/Wife submits that the Respondent/Husband filed the Revision against the judgment of conviction dated 02.02.2010 in S.T.C.No.1960 of 2009 passed by the trial Court with a delay of 20 days and the same was returned by the Learned Principal Sessions Judge, Tirunelveli on 02.06.2010 on the ground that the Revision was not maintainable. 5. The Learned Counsel for the Revision Petitioner contends that this Court passed orders in Crl.R.C.No.423 of 2011 filed by the Respondent/Husband as petitioner on 05.02.2013 and that this Court issued the certified copy of the order dated 05.02.2013 passed in Crl.R.C.No.423 of 2011 on 20.02.2013, but the Respondent/Husband represented the Revision Petition before the Principal Sessions Judge, Tirunelveli only on 20.08.2013 as seen from the impugned order. 6. The main grievance of the Revision Petitioner is that the Learned Principal Sessions Judge, Tirunelveli should have seen that the Respondent/Petitioner (Husband) had filed the petition in Cr.M.P.No.3859 of 2014 for condoning the delay only on 08.07.2014 and further, the Respondent/Petitioner had not offered any acceptable explanation for the enormous delay of one year and five months in filing and representing his Revision Petition before him at the time of representation. 7. 7. The other plea taken on behalf of the Petitioner is that the Respondent/Husband filed Crl.R.C.No.423 of 2011 before the Honourable High Court and this Court, on 05.02.2013, had passed an order that the Revision Petition filed by the Respondent/Husband before Sessions Court is maintainable and further directed to entertain the petition filed by the Respondent/Husband and to take it on file on its representation and dispose it in accordance with Law. 8. The Learned Counsel for the Revision Petitioner (Wife) takes a stand that the Respondent/Husband before the Learned Principal Sessions Judge, Tirunelveli had not filed a petition to condone the delay along with the Revision Petition on 31.05.2010 and further, the Respondent/Husband had not stated the date on which he applied the copy application (to obtain the copy of the orders passed) and further, he had also not mentioned on which date the copy was made ready and added further, he had not mentioned the date on which he filed revision petition before the Learned Principal Sessions Judge, Tirunelveli. The Learned Counsel for the Revision Petitioner contends that the only question that was raised and determined in Crl.R.C.No.423 of 2011on the file of this Court was whether a 'Revision' is maintainable for enhancement of sentence or not. Apart from that, the Respondent/Husband ought to have filed 'Revision' within 90 days from 02.02.2010 after excluding the days taken by the trial Court to make the copy of the judgment ready after receiving the application from him i.e., he should have filed revision on or before 03.05.2010 plus the days taken to make the copy ready. 9. It is represented on behalf of the Petitioner/Wife that if there was any delay, the Revision Petition should accompany with a petition for condoning the delay. Otherwise, the Revisional Court would not have jurisdiction to entertain the revision. It is projected on the side of the Revision Petitioner/Wife that the Revision Petition filed by the Respondent/Husband on 31.05.2010 before the Learned Principal Sessions Judge, Tirunelveli without enclosing a delay condonation petition cannot be construed as the date on which he filed the revision. 10. Finally, it is the stand of the Revision Petitioner/Wife that the Respondent/Husband had not offered any explanation for each days delay as required by Law. 11. 10. Finally, it is the stand of the Revision Petitioner/Wife that the Respondent/Husband had not offered any explanation for each days delay as required by Law. 11. Conversely, it is the submission of the Learned Counsel for the Respondent/Husband that the Respondent/Husband filed Revision Petition before the Learned Principal Sessions Judge, Tirunelveli on 31.05.2010 and the same was returned stating that Revision Petition was not maintainable before the Sessions Court and that the Respondent/Husband filed Crl.R.C.No.423 of 2011 (as Revision Petitioner before this Court seeking enhancement of sentence against the judgment delivered in S.T.C.No.1960 of 2009 on the file of trial Court dated 02.02.2010 and ultimately, this Court had held that the Revision filed by the Respondent/Husband (as Petitioner) before the Sessions Court was maintainable and added further, the Sessions Court, Tirunelveli was directed to entertain the revision petition filed by him and further, the Sessions Court was also directed to take the said revision on file on its representation and to dispose of the same in accordance with law. 12. The Learned Counsel for the Respondent/Husband brings it to the notice of this Court that the Revision Petitioner/Husband had received the order copy of this Court dated 05.02.2013 in Crl.R.C.No.423 of 2011 on 20.02.2013 and that the Respondent/Husband represented the 'Revision papers' before the Learned Principal Sessions Judge, Tirunelveli on 08.08.2014 and that apart, the delay in representation of filing the Revision Petition was condoned by the Learned Principal Sessions Judge, Tirunelveli and thereafter, the Respondent/Husband filed Cr.M.P.No.3859 of 2014 (as Revision Petitioner) before the Learned Principal Sessions Judge, Tiruneveli to condone the delay of 20 days in filing the Revision Petition and the said petition was allowed on payment of cost of Rs.1,500/- to be paid to the Revision Petitioner/Wife directly on or before 16.12.2014 etc., and since the cost of Rs.1,500/- was not received by the Revision Petitioner/Wife, the same was deposited by the Respondent/Husband. 13. Continuing further, the Learned Counsel for the Respondent/Husband contends that 'Memorandum of criminal Revision Petition' filed by the Respondent/Husband before the Learned Principal Sessions Judge, Tirunelveli was returned for certain defects and on compliance, the same was numbered as Cr.M.P.No.3859 of 2014 in which finally a conditional order was passed by the Learned Principal Sessions Judge, Tirunelveli on 04.12.2014 to the effect that the petition was allowed on payment of cost of Rs.1,500/- to the Respondent/Wife by the Revision Petitioner/Husband etc. 14. At this stage, this Court, on perusal of the order dated 04.12.2014 in Cr.M.P.No.3859 of 2014, finds that the Learned Principal Sessions Judge, Tirunelveli had among other things observed the following: “On perusal of records, I find that the revision petition was filed before the Court and the same was returned and represented for more times then only with the return the petitioner filed Crl.R.C.(MD).No.423 of 2011 before the Hon'ble High Court thereafter the Hon'ble High Court held that this Court has got right to entertain the revision and in these circumstances this petitioner was with direction to represent the revision before the Principal Sessions Court, Tirunelveli and on the direction this petition was represented on 20.08.2014 for the order dated 05.02.2013. Of course, there is an enormous delay in filing this revision after the Hon'ble High Court order as alleged by the respondent. But at the same time whether it is a delay in filing petition or revision delay is concerned once the revision petition is filed and the same was returned then it is represented with delay then the delay will be the representation delay and not the delay in filing the revision petition particularly when the Honourable High Court was passing the order to the effect that the revision petition has taken on file (should be revision petition is to be taken on file) would clearly indicate that it is nothing but revision in the order of the Hon'ble High Court time has not been mentioned. Anyhow this petition is represented with enormous delay and the delay in representation was condoned by filing an applications and so the contention of the respondent in this aspect is not correct. Further, the C.A.No.40 of 2010 is alleged to have been still pending. In this circumstances, hearing the revision along with the C.A. cannot be prejudiced against the respondent. Even if it is represented that delay of enormous days. At the same time for the inconvenience caused to the respondent, I am of the considered view that this petition is to be allowed on payment of cost of Rs.1,500/- to be paid to the respondent, and consequently, allowed the petition on payment of cost of Rs.1,500/- as stated supra. It is to be noted that the doctrine of limitation and prescription is based on the broad consideration vigilantibus et non dormientibus jura subveninut. It is to be noted that the doctrine of limitation and prescription is based on the broad consideration vigilantibus et non dormientibus jura subveninut. As a matter of fact, Law comes to the aid of a vigilant person and not of a sleepy or negligent person. It is true that law of limitation is lex fori and the principle of equity is not to be invoked to extend the period of limitation. The principles underlying the Limitation Act, 1963, are based on a public policy aiming at justice and a person may lose its action on his own inaction, negligence or laches, as the case may be. 15. It is to be borne in mind that Section 5 of the Limitation Act, 1963, is to be construed liberally. If a person bona fide brings the fact situation on record, the same cannot be doubted. Also, it is to be noted that the existence of circumstances mentioned in Section 14 of the Limitation Act, 1963 constitutes a sufficient cause for condoning the delay under Section 5 of the Limitation Act, caused by wrong proceedings as per decision (Kayambu Pillai v. Court of Wards) reported in AIR 1942 (Mad.) 170 . 16. Indeed, the first consideration under Section 5 of the Limitation Act is that the expiration of the period of limitation prescribed for making an Appeal or Revision gives rise to a right in favour of another person. The other consideration which cannot be ignored is that if sufficient cause for excusing the delay is shown discretion is given to a Court of Law to condone the delay. The said discretion should be exercised by the Court to advance substantial cause of justice and that too, when no negligence nor inaction nor want of bona fide is attributable to the person concerned. Even in every case of delay, there can be some laches on the part of a litigant concerned. That alone is not enough to negative his plea and to shut the door against him. If the explanation does not smack of mala fide or it is not suggested as part of dilatory tactics, then a Court of Law must show utmost consideration to a litigant, in the considered view of this Court. 17. That alone is not enough to negative his plea and to shut the door against him. If the explanation does not smack of mala fide or it is not suggested as part of dilatory tactics, then a Court of Law must show utmost consideration to a litigant, in the considered view of this Court. 17. As far as the present case is concerned, the Respondent/Husband in his affidavit in Cr.M.P.No.3859 of 2014 in unnumbered Crl.R.C. of 2014 and among other things stated that before filing of Revision Petition, he fell sick and for certain family reasons, he could not file the Criminal Revision Petition and in that process, there had occasioned a delay of 20 days, which was not a deliberate one and as such, the same was to be condoned. The Revision Petitioner/Wife filed a counter to Cr.M.P.No.3859 of 2014 before the Learned Principal Sessions Judge, Tirunelveli inter alia stated that the Respondent/Husband, while filing the Revision Petition, along with the said revision petition had not filed any separate application seeking to condone the delay and Cr.M.P.No.3859 of 2014 (delay condonation petition) was filed on 08.07.2014. Added further, in the counter, it was mentioned that the Revision Petition should have been filed within 90 days from the date of judgment of the trial Court, but the Respondent/Husband had not filed the Revision Petition within time and even after passing of an order by this Court on 05.02.2013 in Crl.R.C.No.423 of 2011, the Respondent/Husband had not filed the Revision Petition, but filed the same after a long delay of one year and five months. Apart from that, he had not specified the cause for the delay and also not given proper explanation for the delay in question. 18. At this juncture, this Court aptly points out that the trial Court, in the impugned order in Cr.M.P.No.3859 of 2014, had rightly observed that once the Revision Petition is filed then the delay will be representation delay in filing revision and not the delay in filing Revision Petition etc. As such, the contra plea taken on behalf of the Petitioner/Wife in this regard is negatived by this Court. 19. As such, the contra plea taken on behalf of the Petitioner/Wife in this regard is negatived by this Court. 19. In the instant case on hand, the Respondent/Husband had represented the Revision Petition before the Sessions Court, Tirunelveli on 08.07.2014 after receipt of the High Court order in Crl.R.C.No.423 of 2011 on 20.02.2013 and also that the delay in representation was condoned by the First Revisional Court, thereafter only, the Respondent/Husband filed Cr.M.P.No.3859 of 2014 (praying to condone the delay of 20 days in preferring the revision petition) and ultimately, the Learned Principal Sessions Judge, Tirunelveli had allowed the petition by observing that 'even if it is represented with a delay of enormous days, at the same time, for the inconvenience caused to the Respondent (revision petitioner/wife), he was of the considered view that this petition was to be allowed on payment of cost of Rs.1,500/- to be paid to the Respondent (revision petitioner/wife) and in this regard, this Court is of the considered view that the Learned Principal Sessions Judge, Tirunelveli had exercised his thinking judicial mind and also discretion, by adopting a lenient and liberal approach, avoiding a pedantic approach, overriding hyper technicalities. The said exercise of judicial discretion by the Learned Principal Sessions Judge in allowing Cr.M.P.No.3859 of 2014 in unnumbered Crl.R.C. of 2014 filed by the Respondent/Husband (as revision petitioner) is perfectly a valid and legal one and the same is not liable to be interfered by this Court, because of the simple reason that there is no arbitrariness or capriciousness or perversity on the part of the Learned Principal Sessions Judge, Tirunelveli in allowing the Cr.M.P.No. 3859 of 2014 on his file. Consequently, the Criminal Revision Petition fails. 20. In the upshot of detailed and qualitative discussions, the Criminal Revision Petition filed by the wife is dismissed for the reasons assigned by this Court. Resultantly, the impugned order dated 04.12.2014 of Learned Principal Sessions Judge, Tirunelveli in Cr.M.P.No.3859 of 2014 is confirmed by this Court for the reasons assigned in this Revision Petition.