Doreswamy vs Sarvodaya Education Society

N. Kumar, J.—This writ petition is filed by the second defendant in the suit. The suit is filed by one Sarvodaya Education Society for a declaration that, the plaintiff is not entitled to claim Rs. 70,000/- from the first defendant towards the market value of the suit ''B'' schedule property which is part and parcel of suit ''A'' schedule property, which having been taken possession by the first defendant from the plaintiff for forming the road, belonging to the plaintiff and consequently for recovery of Rs. 70,000/- with interest at 18% p.a.

The suit after contest came to be decreed. The second defendant has objected for payment of the said amount to the plaintiff. However after contest, the suit came to be decreed. Second defendant aggrieved by the said order preferred this appeal. There is a delay of 90 days in preferring this appeal. Therefore an application under Sec. 5 of the Limitation Act was filed for condoning the delay. The application was opposed. Enquiry was held. The lower appellate Court held the cause shown does not constitute sufficient cause and therefore application was dismissed. Consequently, appeal also came to be dismissed. The cause shown was, the defendant had engaged a Counsel. He did not properly prosecute the matter. He gave no objection to engage another Counsel after the decree was passed and therefore they contend that, the decree is affecting his interest and therefore he should be permitted to challenge the said decree by prosecuting the appeal. Though the trial Court cannot be found fault with, after accepting the case of the second defendant, having regard to the fact that, the delay was only 90 days and now we are seeing a recent trend with the party blaming the Advocate blaming the party and in the process justice being suffered, Court cannot be silent spectators. In that view of the matter, the Court should have taken a very liberal approach and imposed some cost and allowed the application.

The writ petition is allowed. Impugned order is set aside. Application filed under Sec. 5 of the Limitation Act by the appellant is allowed. Appeal is restored to file. The appellant shall pay cost of Rs. 5,000/- to the plaintiff in the suit before arguing the matter.