A.P. Krishnaveniammal and Others vs Pappaiah Reddy

V. Periya Karuppiah, J.—This Revision Petition has been filed against the dismissal order passed by the lower Court in I.A. No. 54 of 2008 in A.S. No. 29 of 2000 dated 30.01.2009 by the lower Court, an application to re-admit the appeal, dismissed for default.

Heard Mr. Mohamed Riyaz, learned Counsel for the Petitioners and Mr. A.V.K. Ezhilmani, learned Counsel appearing for Mr. Y.N. Venkatraj, learned Counsel for the Respondent. Records were called for from the lower Court and the same has been received and perused.

The learned Counsel Petitioner would submit in his argument that the Petitioner preferred an appeal against the judgment and decree passed in O.S. No. 971 of 1989 filed by the Respondent and the said appeal was dismissed for default on 14.08.2001 for the non-appearance of the Petitioner/Appellant and therefore, he had filed an application to re-admit the appeal for hearing on 07.09.2001 within the time allowed by law, but, the said application was not immediately numbered and was kept by the Court for receipt of records from the District Court and in that process a long delay has been caused. He would also submit that the lower Court had admitted the said application in I.A. No. 54 of 2008, but, did not appreciate the contentions raised by the Petitioners for their absence on the particular day when the appeal was posted for hearing. He would further submit in his argument that the lower Court had wrongly come to a conclusion that there should be sufficient reasons for re-admitting the appeal on file to the satisfaction of the Court and the Petitioners have wantonly delayed the proceedings and therefore the re-admittance application was not allowable. He would further submit in his argument that the application filed by the Petitioner on 07.09.2001 was not returned on no occasion by the lower Court, but it was kept pending for the records to be received from the District Court and there was no fault on the part of the Petitioners to attribute a delay. He would further submit in his argument that the Petitioners should not be penalised for the mistake committed by the Court and he has also referred a maxim "acts curiae neminem gravabit" and seeks for interference with the orders passed by the lower Court and to set aside the same, to give an opportunity to the Petitioners to participate in the appeal.

The learned Counsel for the Respondent would submit in his argument that the lower Court was correct in dismissing the petition for re-admittance since the Petitioners were inactive to see the application filed by them to be numbered and they could get it numbered and would seek a judicial order to send for the records to have an earlier disposal but it was not done by the Petitioners, wantonly with a view to delay the proceedings. He would further submit in his argument that the lower Court had numbered the said application, after a long delay, only due to the laches on the part of the Petitioners. Therefore, he would submit in his argument that there is no need for interfering with the orders passed by the lower Court in dismissing the application for re-admittance of the appeal and would further submit that the Petitioners have no merits in the appeal also. He would also submit that in the event of the revision is ordered in favour of the Petitioners, suitable directions may be given to the lower Court to expeditiously dispose the appeal within such time to be framed by this Court. Therefore, he would request the Court to dismiss the revision.

I have paid much consideration to the arguments advanced on either side. The Petitioners were the Defendants in the suit filed by the Respondent, a suit for declaration of his title to the suit properties and for permanent injunction restraining the Defendants from interfering with possession. The said suit was decreed by the trial Court, after a stiff contest and the Petitioners have preferred an appeal against the said decree in A.S. No. 29 of 2000, before the lower Court. The said appeal was dismissed for default on 14.08.2001 for want of prosecution and the Petitioners have filed an application to re-admit the appeal on 07.09.2001 within the time limit as allowed by law. However, the said application was not numbered by the Court for want of records already consigned by the said Court to the District Court, for taking the applications on file. The lower Court had come to a conclusion that the delay in numbering the application filed in the year 2008 in an application filed in the year 2001 was only due to the dilatory tactics of the Petitioners for not numbering the said application. On that basis, the lower Court had imputed mala-fide on the part of the Petitioners and dismissed the application. For that we have to see the docket order passed by the lower Court prior to the numbering of the said application.

On a careful perusal of the said application, it is seen that it was filed on 07.09.2001 well within time and it was kept for numbering and the lower Court was awaiting for the records to be received from the District Court. On no occasion, the said application was returned for defects to be cured from the side of the Petitioners. In the said circumstances, there could not be any laches or negligence on the part of the Petitioners in getting the application numbered. The arguments advanced by the learned Counsel for the Respondent that the Petitioners ought to have approached the Court for numbering it at an earlier point of time and asked the Court to send for the records, also cannot be acceptable. The lower Court had kept quiet for nearly seven years in numbering the application and it did not refuse to number the application for any defect or any delay on the part of the Petitioners. It was the mistake of the lower Court in numbering the application in time and to seek for records from the District Court, but it was not resorted to. It is a celebrated maxim, referred in "actus curiae neminem gravabit" which means that no person can be prejudiced by an act of the Court. The learned Counsel for the Petitioner would submit in his argument that he was very much ready to proceed with the application, if it had been numbered already, but, it was not done so. Therefore, the litigant should not be penalised, for the mistake of the Court.

Considering the said aspect, the lower Court ought to have permitted the Petitioners to participate in the appeal by re-admitting the appeal, after setting aside the dismissal order, but, it did not do so. If, in the event, the appeal is restored to file certainly the Respondent/Plaintiff would be loosing a lawfully accrued right, in the suit. However, in the circumstances of the case, the application should have been allowed, after compensating the Respondent suitably, for that purpose. Therefore, this Court is of the opinion that the revision petition will have to be allowed on payment of costs of Rs. 5,000/- (Rupees Five Thousand Only) payable by the Petitioner to the Respondent or Respondent''s counsel within a period of one week from today. In default to pay the said amount, the revision shall stand dismissed automatically without any further reference to this Court.

In the result, the revision petition will be allowed on payment of cost of Rs. 5,000/-(Rupees Five Thousand Only) payable to the Respondent or Respondent''s counsel by the Petitioner within a period one week from today. In default to pay the said amount, the revision shall stand dismissed automatically, without any further reference to this Court. In the event of the revision being allowed and the application to re-admit the appeal shall also be deemed to be allowed and the lower Court is directed to expeditiously dispose of the appeal within a period of one month from the date of receipt of the records or from the date of receipt of a copy of this order, which ever is later. The Registry is directed to send the records within a week from the date of preparation of the order.

With the aforesaid observations, this revision petition is ordered. No costs.