Allowed

Marry Susheela v. Shalee Kasthuribai

Madras HC2 Apr 2014CRP/1412/2008

Case brief

AI extract

What is this about?

In a civil revision petition, the High Court allowed the set-aside of a trial court order dismissing a delay condonation application. The court held it was illegal to reject the plea without sufficient cause solely due to the lack of a medical certificate, emphasizing that substantial justice prevails over technicalities in matters of limitation.

What did the court decide?

The impugned order dismissing the application for condonation of delay in filing the appeal is set aside; the application to condone the delay of 440 days is allowed.

Marry Susheela Vs Shalee Kasthuribai — Property and Title | Madras HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Dated: 02.04.2014

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CORAM:

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The Hon'ble Mr. Justice R.KARUPPIAH

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Civil Revision Petition No.1412 of 2008

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and M.P.No.1 of 2008

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Prayer: The Civil Revision Petition filed under section 115 of civil produce code, 1908 against the fair order and decretal order dated 05.12.2007 passed in I.A.No.56 of 2007 in ASCFR No.2816 of 2007 on the file of the District Court, Udhagamandalam.

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The civil revision petition has been filed to set aside the fair order and decretal order dated 05.12.2007 passed in I.A.No.56 of 2007 in ASCFR No.2816 of 2007 on the file of the District Court, Udhagamandalam.

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2.Heard Mr.R.Subramaninan, learned counsel appearing for the revision petitioner and Mr.C.Deivasigamani, learned counsel appearing for the respondent.

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3.For the sake of convenience, the defendant in the original suit referred as revision petitioner and the plaintiff in the original suit referred as respondent hereafter.

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4.The revision petitioner herein, who is the defendant in the original suit in O.S.N.313 of 2003, filed the first appeal in ASCFR No.2815 of 2007 along with an application in I.A.No.56 of 2007 under Section 5 of the Limitation Act to condone the delay of 440 days in filing the first appeal. In the affidavit filed in support of the said application, it is stated that the original suit was decreed on 20.4.2006 and the revision petitioner applied for copies of the

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judgment and decree on 24.4.2006 and the same were received on 25.05.2006. It is further stated that the revision petitioner ought to have filed the first appeal on or before 21.6.2006, but, due to illness, she took treatment from 20.6.2006, and the doctor adviced her to take bed rest till 27.7.2006 and hence the revision petitioner was unable to meet her counsel on record. Further, due to communication gap, the first appeal could not be filed in time. In the meantime, the respondent herein filed a final decree application. The revision petitioner approached the previous counsel, who was on record, but he expressed his inability to conduct the case. Thereafter, she engaged the present counsel on record and filed the appeal with delay condonation petition. The delay is neither wilful nor wanton and thereafter prayed for condoning the delay of 440 days in filing the first appeal.

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5.The respondent herein filed a detailed counter denying the above said averments made in the affidavit and stated that after passing of preliminary decree, a final decree application was filed in I.A.No.146 of 2007 and the same is pending. It is also averred in the counter that the allegations made in the affidavit are all false and imaginary. If really the revision petitioner was under treatment, the family members could have taken steps to file the appeal in time. Therefore, the application filed for condoning the delay of 440 days in filing the appeal is a frivolous one and also wilful and deliberate. Moreover, the revision petitioner suppressed the material facts and also she has not approached the Court with clean hands and hence, the application is liable to be dismissed.

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6.The trial Court, after considering the both sides contentions and finally dismissed the said application filed in I.A.No.56 of 2007 on 5.12.2007. Aggrieved over the said order of dismissal, the revision petitioner has filed the revision petition.

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7.The learned counsel for the revision petitioner submitted that both the revision petitioner and the respondent are sisters. The revision petitioner was unable to file the first appeal within time only due to her illness. Further, the previous counsel refused to conduct the case for the revision petitioner and therefore, she engaged another counsel and filed an appeal along with the application in I.A.No.56 of 2007 and the above said process, the delay has occurred.

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8.Per contra, the learned counsel for the respondent submitted that the revision petitioner has suppressed the material facts and made the false averments, as if, due to illness and took treatment, unable to file appeal within time. If it is true, the revision petitioners ought to have produced the medical evidence. But, no material has been produced by the revision petitioner to prove the same and therefore, the trial Court has correctly dismissed the petition.

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9.It is not in dispute that the revision petitioner and the respondent are sisters and the original suit is filed for partition in respect of the immovable properties. The trial Court passed a preliminary decree in the suit in favour of the plaintiff on 20.4.2006. As against the judgment and decree passed by the trial Court, the revision petitioner filed the first appeal with the delay of 440 days.

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10.The reasons stated by the revision petitioner is that due to illness, she taken treatment from 20.6.006 and also the doctor advised her to take bed rest till 27.7.2006 and hence, she unable to file appeal within time. Thereafter, when she approached the previous counsel, who was on record for conducting the case, he expressed his inability to conduct the case. After that the revision petitioner engaged the present counsel and filed the appeal with the delay condonation petition and in that process, the delay has been occurred. The trial Court dismissed the above said application only on the grounds that the revision petitioner has not produced any medical certificate to prove the fact that she was bed ridden as alleged in the affidavit and the revision petitioner could have contacted her counsel over phone and instructed him to file an appeal and holding that there was no sufficient cause for condoning the delay, and finally dismissed the application.

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11.The learned counsel appearing for the revision petitioner submitted that the trial Court has not properly considered the reasons stated by the revision petitioner and only on technical reasons the trial Court wrongly dismissed the application. In support of his contention, the learned counsel for the revision petitioner relied on a decision in N.BALAKRISHANAN VS. M.KRISHNAMURTHY reported in [(1998) 7 SCC 123], wherein paragraphs 9 and 10 read as follows:

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"It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly

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untenable grounds or arbitrary or perverse. But, it is a different matter when first court reuses to condone the delay. In such cases the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court.

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The reason for such a different stance is thus:

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The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause."

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12.The learned counsel also relied on another decision in M/s. T.V.SUNDARAM IYENGAR AND SONS LTD., AUTHORIZED DEALER FOR PAL PEUGOT LTD., OMALUR MAIN ROAD, SALEM 9 reported in [2008 (1) L.W 494] wherein it is held as under:

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"As a matter of fact, a party does not stand the benefit by resorting to delay. Per contra, he runs a serious risk. It cannot be again said that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so."

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13.The learned counsel further relied on yet another decision in COLLECTOR, LAND ACQUISITION, ANANTNAG AND ANOTHER VS. MST.KATUL AND OTHERS reported in [(1987) 2 SCC 107] wherein, the relevant portion reads as under:

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"And such a liberal approach is adopted on principle as it is realized that:

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1.Ordinarily a litigant does not stand to benefit by lodging an appeal late.

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2.Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

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3."Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

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4.When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

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5.There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

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6.It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."

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14.Per contra, the learned counsel for the respondent relied on the decision in MRS.SUBBULAKSHMI ETC. VS. PUNJAB AND SIND BANK & OTHERS ETC. reported in (2010 CIJ 272 CLJ) and submitted that while considering the application for condonation of delay, the Court could certainly keep in mind that when substantial justice and technical consideration are pitted against each other, cause of substantial justice deserves to be preferred and the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. The relevant portion from paragraph 6 of the above decision, reads as under:

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"The question of condonation of delay would depend upon the facts of each case. Though the expression "sufficient cause" should receive a liberal construction, the Court must also see as to whether the party approaching the Court seeking for such condonation of delay had acted with reasonable diligence. The petitioner was very well aware of the proceedings pending before the Tribunal as well as the appearance of the Official Liquidator in the proceedings. Thereafter, there were no representation on number of occasions."

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15.In the above said decision it is clearly held that the petitioner was very well aware of the proceedings before the tribunal as well as the appearance of the Official Liquidator in the

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proceedings. Thereafter, there was no representation on number of occasion. Further in the said proceedings, the suit property was already sold. The Division Bench of this Court after considering all the facts stated in that petition, has not condoned the delay. Therefore, the facts stated in the above said decision are not applicable to the facts of the present case since in the instant case, the preliminary decree alone was passed and the final decree proceedings are still pending and further the revision petitioner has properly explained the delay.

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16.A careful perusal of the law laid down by the Supreme Court in various decisions, clearly revealed that to remove injustice the delay has to be condoned and should not rejected on technical grounds. In this case since the revision petitioner has given sufficient reason for condoning the delay, but the trial Court dismissed the application only on the main ground that the revision petitioner has not produced medical certificate to show that she was ill and her doctor advised her to take bed rest till 27.7.2006. The above said finding of the trial Court is perverse and illegal and hence, the order passed by the trial Court is to be set aside and the revision petition is to be allowed.

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17.In the result, the civil revision petition is allowed and the order passed by the trial Court in I.A.No.56 of 2007 in ASCFR No.2816 of 2007 is set aside and the delay of 440 days in filing the appeal is condoned and the above said application is allowed accordingly. No costs. Consequently, miscellaneous petition is closed.

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Sd/Assistant Registrar /True Copy/ cla Sub. Assistant Registrar To 1. The District Judge, The Nilgiris at Udhagamandalam.

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The Subordinate Judge, The Nilgiris at Udhagamandalam. 3. The Section Officer, VR Section,High Court, Madras. + 1 cc to Mr. R. Subramainanm Advocate Sr.16028

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C.R.P.No.1412 of 2008 RBD(CO) Eu 25.3.14

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Marry Susheela v. Shalee Kasthuribai

Case brief

What is this about?

What did the court decide?

Marry Susheela v. Shalee Kasthuribai

Case brief

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