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2018 DIGILAW 4530 (MAD)

Nellai Nedumaran v. Theerantheeswaran Chithirai

2018-12-18

T.RAVINDRAN

body2018
JUDGMENT : In this civil revision petition challenge is made to the fair and decreetal orders, dated 18.02.2009 passed in I.A.No.273 of 2005 in A.S.G.L.No.4780 of 2005, on the file of the Subordinate Court, Tuticorin. 2. The revision petitioners are the defendants 6 to 8 in O.S.No.256 of 1996, on the file of the Additional District Munsif Court, Tiruchendur, which had been laid for the relief of permanent injunction by the plaintiffs therein. It is seen that the abovesaid suit ended in a decree in favour of the plaintiffs. Impugning the same, the revision petitioners preferred the first appeal and inasmuch as there occurred a delay of 301 days in preferring the first appeal to condone the abovesaid delay, the application in I.A.No.273 of 2005 had been preferred by the revision petitioners. The reasons given by the revision petitioners for the condonation of the abovesaid delay is that during August 2004, the third revision petitioner, who had been to Chennai to visit his daughter, had been affected by jaundice and accordingly, been taking treatment, with reference to the same, by a native Doctor and inasmuch as he was unable to recover immediately, he continued to stay in his daughter's house and taking treatment and after recovering to some extent, according to him, he had returned to his native place on 01.07.2005 and thereafter, contacted his Advocate and on enquiry about the stage of the case, his Advocate had informed him that the time had expired for preferring the appeal and the letter sent by the Advocate in connection with the same could not be received and further his family members also not informed him about the letter sent by the Advocate and inasmuch as he has a good case to defend plaintiffs' suit and that he has been defending the suit on behalf of the Village people and accordingly, prayed for the condonation of the delay. 3. 3. The abovesaid application of the revision petitioners had been resisted by the respondents 5 to 7 herein and they contended that the reasons adduced by the revision petitioners that on account of the third revision petitioner being affected by jaundice, he had been taking treatment at his daughter's house at Chennai and thereby, he was unable to know the progress of the case and that the letter sent by the Advocate could not be received and also not informed to him by his family members and only on coming to his native place after recovery, he had come to know about the delay in preferring the appeal etc., are all false and according to them, no sufficient cause has been adduced by the revision petitioners for the delay. Furthermore, there is no reason adduced as to why the other revision petitioners had not preferred the appeal in time and inasmuch as the revision petitioners had no case, accordingly, they have not evinced interest to challenge the Judgment and Decree of the Trial Court and even the period of delay has not been properly computed and with reference to the alleged illness, taking native treatment by the third revision petitioner etc., no particulars have been furnished in the delay condonation application and the abovesaid reasons are false and projected only for the purpose of the case and inter alia they prayed for the dismissal of the application. 4. Based on the materials placed on record, the Court below was pleased the dismiss the abovesaid application preferred by the revision petitioners. Aggrieved over the same, the present civil revision petition has been laid. 5. The revision petitioners suffered a decree in the suit laid by the plaintiffs. Challenging the same, they had preferred the first appeal. As there occurred the delay of 301 days in preferring the first appeal, to condone the same, the present application had been preferred by them. Aggrieved over the same, the present civil revision petition has been laid. 5. The revision petitioners suffered a decree in the suit laid by the plaintiffs. Challenging the same, they had preferred the first appeal. As there occurred the delay of 301 days in preferring the first appeal, to condone the same, the present application had been preferred by them. For the condonation of the delay, according to the revision petitioners, the third revision petitioner had been to his daughter's house during August 2004 and had been affected by jaundice and accordingly, taking continuous treatment with reference to the same by a native Doctor and as he was unable to recover immediately, he had stayed at his daughter's house and only after getting recovered, he reached his native place during July, 2005 and on contacting his Advocate, he came to know that the delay had occurred in preferring the appeal and further, it is stated that the letter sent by the Advocate could not be received and also not apprised to him by his family members and hence, the delay had occurred. 6. The abovesaid reasons projected by the revision petitioners are totally disputed by the contesting respondents and according to them, only for the purpose of the condonation of the delay, the abovesaid reasons have been falsely adduced by the revision petitioners and according to them, the reasons adduced cannot be termed as sufficient cause, as contemplated under Section 5 of the Limitation Act and the revision petitioners have not given any particulars with reference to the reasons putforth and accordingly, prayed for the dismissal of the abovesaid application. 7. As rightly contended by the contesting respondents and as rightly determined by the Court below, it is seen that absolutely no valid cause had been given by the revision petitioners with reference to the condonation of the delay. It is not the case of the revision petitioners that they are not aware of the decree passed in the suit. It is seen that the decree had been passed in the suit on 24.02.2004. If really the revision petitioners are aggrieved over the same, they should have taken immediate steps to apply for the certified copy of the Judgment and Decree and preferred the appeal in time. It is seen that the decree had been passed in the suit on 24.02.2004. If really the revision petitioners are aggrieved over the same, they should have taken immediate steps to apply for the certified copy of the Judgment and Decree and preferred the appeal in time. On the other hand, even as per the case of the revision petitioners, the third revision petitioner had been to his daughter's house at Chennai, only during August, 2004. Therefore, as rightly determined by the Court below, there is no proper explanation on the part of the revision petitioners as to why the delay had occurred for the period from 24.02.2004 till August, 2004. In addition to that, the plea of the revision petitioners that as the third revision petitioner had been affected by jaundice and taking treatment at his daughter's house at Chennai, he was unable to contact his Advocate and thereby, the delay had occurred. With reference to the abovesaid plea putforth by the revision petitioners that the third revision petitioner had been affected by illness and been taking treatment continuously in his daughter's house at Chennai, absolutely, there is no material worth acceptance and reliable material placed by the revision petitioners. When the abovesaid reasons are stoutly repudiated by the contesting respondents, every effort and endeavour should have been made by the revision petitioners to establish the reasons adduced by them, at least prima facie, to satisfy the Court. On the other hand, with reference to the abovesaid cause, when there is no material placed other than the interested and ipse dixit testimony of the revision petitioners, the Court below had rightly refused to accede to the same. The revision petitioners have also admitted that their Advocate had sent a letter to them in connection with the filing of the appeal. If the above reason has any element of truth, the revision petitioners, on coming to know of the same, would have produced the said letter to the Court and also either examined their Advocate or filed the affidavit of their Advocate in support of their case. Furthermore, to say that the letter sent by the Advocate had not been apprised to the third revision petitioner by the family members also cannot be readily countenanced. Furthermore, to say that the letter sent by the Advocate had not been apprised to the third revision petitioner by the family members also cannot be readily countenanced. In addition to that, as rightly putforth, even assuming for the sake of argument that the third revision petitioner has been affected by illness, nothing prevented the other revision petitioners from proceeding with the prosecution of the appeal in the manner known to law and accordingly, when it is seen that no endeavour has been made by the revision petitioners in preferring the appeal in time and they had been taking their own time leisurely in preferring the appeal and accordingly, the delay had occurred and even with reference to the said delay, when the revision petitioners have not adduced any sufficient cause and also not endeavoured to substantiate the same with acceptable and convincing reasons, the Court below is fully justified in dismissing the application preferred by the revision petitioners. 8. The counsel for the revision petitioners contended that insofar as the application preferred by the revision petitioners for the condonation of the delay, the plaintiffs had not putforth any serious objections and on the other hand, only the contesting respondents had resisted the application preferred by the revision petitioners and in such view of the matter, when the plaintiffs are found to be not aggrieved by allowing the application preferred by the revision petitioners, according to him, the Court below should have considered the abovesaid aspect and disposed of the application in their favour. The question is which party opposes and which party accepts the petitioners' case is not the criteria for the condonation of the delay. It is on the part of the petitioners to adduce sufficient case and when the alleged cause putforth by them is being challenged by the contesting respondents as putforth, the revision petitioners should place adequate proof worth acceptance to sustain the same. On the other hand, the revision petitioners cannot be allowed to take umbrage that the plaintiffs, as such, have not seriously resisted the application and therefore, their application should have been allowed by the Court below. On the other hand, the revision petitioners cannot be allowed to take umbrage that the plaintiffs, as such, have not seriously resisted the application and therefore, their application should have been allowed by the Court below. If that is the criteria, it would only lead to the horse-trading one way or the other and would not be in the interest of promoting justice and when the law stipulates that for the condonation of the delay, sufficient cause should be adduced and when the sufficient cause be projected, the Court should consider the same leniently and pragmatically and insofar as this case is concerned, when the cause adduced by the revision petitioners are bereft of particulars and also not substantiated by the revision petitioners with acceptable materials and when the revision petitioners are found to have taken their own time in preferring the appeal leisurely, without caring for the consequences thereof, in such view of the matter, no indulgence should be shown to the revision petitioners in allowing the application preferred by them, when particularly, there is a huge and inordinate delay in preferring the appeal. 9. In the light of the above discussions, I do not find any reason to interfere with the impugned order of the Court below, dismissing the delay condonation application preferred by the revision petitioners. 10. Resultantly, the civil revision petition is dismissed. However, considering the facts and circumstances of the case, there is no order as to costs.