J. Aeronimuse vs M. Arulappan

M. Venugopal, J.—The Revision Petitioner/Plaintiff has filed the present Civil Revision Petition as against the order dated 27.08.2002 in I.A. No. 29 of 2001 in A.S.S.R. No. 418 of 1997 passed by the learned Principal District Judge, Nagercoil.

The learned Principal District Judge, while passing the orders in I.A. No. 29 of 2001 on 27.08.2002 has among other things observed that since the I.A. No. 28 of 2001 filed for excuse of delay 1322 days has been dismissed, the present I.A. No. 29 of 2001 is also dismissed without costs.

The learned Counsel for the Revision Petitioner/Plaintiff submits that the order of the learned Principal District Judge, Nagercoil, in dismissing the I.A. No. 29 of 2001 in A.S.S.R. No. 418 of 1997 dated 27.08.2002 is contrary to the law and the same is vitiated by material irregularity in regard to the exercise of jurisdiction.

It is the contention of the learned Counsel for the Petitioner/Plaintiff that there is only shortage of 15 days in filing of an Appeal and this aspect has not been properly appreciated by the learned Principal District Judge, Nagercoil, while dismissing the I.A. No. 29 of 2001 and in any event, the learned Principal District Judge, Nagercoil, should have allowed the I.A. No. 29 of 2001 in the interest of justice.

In I.A. No. 29 of 2001, the Revision Petitioner/Plaintiff has among 3 other things averred that ''the last date of filing of Appeal fell on 20.01.1997, but the Revision Petitioner has fallen sick and admitted as an inpatient in J.J. Hospital, Kottar, on 16.01.1997, but he has undergone an operation for a growth in the middle of the chest and is still continued to be in the Hospital. Further he has not been in a position to give instructions to his Advocate to prefer the appeal and there is a casual delay of 15 days.''

In the counter filed by the Respondent/Defendant it is mentioned that I.A. No. 29 of 2001 filed by the Revision Petitioner/Plaintiff is not maintainable, no proper or legal reason is assigned in the affidavit in I.A. No. 29 of 2001 filed by the Petitioner and since the I.A. No. 29 of 2007 is not maintainable and the said I.A. No. 29 of 2001 is to be dismissed in furtherance of substantial cause of justice.

On going through the order of the learned Principal District Judge, Nagercoil, in I.A. No. 29 of 2001, it is quite evident that the learned Principal District Judge, Nagercoil, has dismissed, the I.A. No. 29 of 2001 on the ground that he has already dismissed, the I.A. No. 28 of 2001 after hearing of both sides.

At this stage, the learned Counsel for the Respondent/Defendant submits that the learned Principal District Judge, Nagercoil, after dismissing the 4 I.A. No. 28 of 2001 has passed consequential order of dismissing the I.A. No. 29 of 2001. Furthermore, the Learned Principal District Judge, Nagercoil, while dismissing the I.A. No. 29 of 2001 has not adverted to the merits of the averments made by the Revision Petitioner in I.A. No. 29 of 2001.

It is to be noted that in the affidavit filed by the Revision Petitioner in I.A. No. 29 of 2001 the reason assigned by the Revision Petitioner is different from the reason assigned in the affidavit filed in I.A. No. 28 of 2001. Consequently, in I.A. No. 29 of 2001 the Revision Petitioner/Plaintiff has stated that he has fallen ill and he has admitted as an inpatient in J.J. Hospital, Kottar, on 16.01.1997 and he has undergone an operation for a growth in the middle of the chest and because of the said reason, he has not been in a position to give instructions to his Counsel to prefer the appeal in time.

However, a perusal of the counter filed by the Respondent/Defendant shows that the factum of Revision Petitioner falling ill and being admitted in J.J. Hospital, Kottar, on 16.01.1997 has not been denied by the Respondent/Defendant. The only averment is that I.A. No. 29 of 2001 is not maintainable. Also, it is mentioned that the petition copy served on the Respondent''s side has been undated. Added further, the Respondent/Defendant has mentioned that no proper or legal reason has been assigned in the affidavit in I.A. No. 29 of 2001.

The learned Counsel for the Respondent/Defendant has brought to the notice of this Court that the Revision Petitioner/Plaintiff in I.A. No. 29 of 2001 has averred in paragraph ''4'' that he has produced herein medical certificate, but neither the same has been filed in the Court nor the same has been marked as exhibit in the Court on the side of the Revision Petitioner/Plaintiff and as such, the Revision Petitioner/Plaintiff has not proved the illness alleged by him. But at this stage, this Court is of the considered view that though the Petitioner has averred that he has produced the medical certificate and the same has not been marked as exhibit in I.A. No. 29 of 2001 on the side of the Petitioner, yet the fact that the Revision Petitioner has fallen ill and admitted as an inpatient in J.J. Hospital, Kottar, has not been categorically denied by the Respondent/Defendant. Even the absence of Medical Certificate being marked as exhibit on the side of the Revision Petitioner/Plaintiff is not fatal to the case of the Revision Petitioner/Plaintiff, in the considered opinion of this Court. It is to be remembered that the Court of law has to deliver substantial justice between the parties overriding technicalities in delay condonation application or representation of delay matters. The pedantic approach or a Court of law and even the length and 6 the breath of delay are not material or relevant factors. Normally, a litigant does not stand to benefit by filing an appeal belatedly. On the other hand, he runs a serious risk. If the condonation of delay or representation of delay is allowed by a Court, then a litigant will be allowed to take part in the main arena of proceedings so that his cause can be decided on merits, by the Court, of course, after hearing both sides on merits. It is to be noted that judiciary is respected not on account of its power to legalise injustice on technical grounds but it is capable of removing injustice and it is expected to do so.

Be that as it may, since the delay of 15 days mentioned in I.A. No. 29 of 2001 filed by the Revision Petitioner is less number of days than the representation day of 1322 in I.A. No. 28 of 2001, this Court on the basis of Equity, Fair Play, Good Conscience and even as a matter of prudence, directs the Revision Petitioner to pay a costs of Rs. 250/-(Rupees Two Hundred and Fifty Only) to the learned Counsel for the Respondent/Defendant directly within a period of ten days from the date of receipt of a copy of this order and subject to these directions, the Civil Revision Petition is allowed, leaving the parties to bear their own costs.