Arumugam Pillai vs Thangaraj Pillai

S. Vimala, J.—Challenging the fair and decretal Order passed in I.A. No.43 of 2008 in A.S.S.R. 478 of 2008 dated 16.7.2008, dismissing the Petition seeking condonation of delay of 596 days in filing the Appeal, the Civil Revision Petition has been filed.

The Petitioner is the Plaintiff. The Petitioner filed the Suit for Partition and separate possession of his 5/12th share over 7 items of Suit properties in O.S. No.65 of 2004. The Suit was resisted based upon Ex.B1 an unregistered and unstamped Partition List dated 19.8.1990. Placing reliance upon Ex.B1, the Trial Court dismissed the Suit. The Petitioner filed the Appeal before District Court at Perambalur on 9.3.2007 and it was returned on 12.3.2007. Not being able to trace out the papers, for the second time Appeal was filed in A.S.R. No.478 of 2008 on 16.7.2008 with a delay of 596 days. Whether there is justification to condone this delay is the issue to be considered.

The ground for dismissal as stated in the Order of the Court below is that immediately fresh Appeal ought to have been tiled and there is no reason as to why no immediate steps have been taken to file the Appeal for the second time when the Appeal filed for the first time has been misplaced. Whether this Order can be justified is the issue raised in this Civil Revision Petition.

Contending that there is no lack of bona fides in filing the Appeal belatedly and that the Court below should have taken the entire amount of facts into account to decide whether the delay has to be condoned or not and when that is not done, it is for this Court to interfere.

It is settled law that substantial justice is paramount and pivotal and technical considerations should not be given undue importance. When the Appeal filed for the first time was misplaced, the natural expectation would be that it can be traced out on search. Nobody would thought of filing the Appeal for the second time, because of the time involved in preparing the grounds of Appeal, expenses of typing and Court-fees. Therefore, the Order passed by the Court below cannot be sustained.

The learned Counsel for the Respondents vehemently opposed the Petition and submitted that the Order of the Court below is perfectly correct and it does not require any interference.

Needless to point out that the expression ''sufficient cause'' should also receive a liberal construction so as to advance justice. The Court should also take into account the nature of the claim made, nature of defence taken and the merits of the grounds of Appeal. If these are taken into account, it is a case where the delay ought to have been condoned, subject to payment of cost to the other side.

The apprehension of the learned Counsel for the Respondent is that this kind of Applications are filed only for the purpose of protracting the proceedings. This apprehension can be removed by directing the Lower Court to finish off the Appeal within a limited time frame.

In the result, the Civil Revision Petition is allowed. I.A. No.43 of 2008 in A.S.SR. No.478 of 2008 is allowed, subject to payment of cost of Rs.5,000/- by the Petitioner to the Counsel for Respondent, within a period of one week from today On such payment in time, I.A. No.43 of 2008 would stand allowed. On numbering the Appeal, if it is in Order, the First Appellate Court will dispose of the Appeal within a period of two months form the date of numbering of the Appeal The undertaking by the learned Counsel for the Petitioner that the Petitioner would cooperate for the early disposal of the Appeal is recorded.

Post for reporting compliance on 23.7.2014.

This Petition having been posted on this day under the caption for reporting compliance as per the Order passed by this Court dated 15.7.2014 made in C.R.P.(NPD) No.2463 of 2009 and made herein in the presence of the aforesaid Advocates, the court made the following order:

This matter is posted today under the caption for reporting compliance.

The learned Counsel appearing for the Petitioner submitted that as per the Order passed by this Court dated 15.7.2014 in C.R.P.(NPD) No.2463 of 2009. cost of Rs.5,000/- has been paid by the Petitioner to the Counsel for the Respondent.

In view of the same the I.A. No.43 of 2008 in A.S.SR. No.478 of 2008 is allowed and the matter is remanded back to the Principal District Court, Perambalur.