M. Singaraja and Others vs Rajeshwari

M. Venugopal, J.—The Revision Petitioners/Petitioners have projected the instant Criminal Revision Petition (MD) No. 74 of 2014 before this Court, being aggrieved against the order dated 18.12.2013 in Crl.M.P. No. 1309 of 2013 in unfiled Crl.A. No. ../2013 passed by the learned Principal Sessions Judge, Madurai.

The Learned Principal Sessions Judge, Madurai while passing the impugned order dated 18.12.2013 in Crl.M.P. No. 1309 of 2013 in unfiled C.A. No. .../2013 [filed by the Revision Petitioners/Petitioners] at Paragraph No. 6 had inter alia observed that.... "In the case on hand, the petitioners have not shown convincing cause for the enormous delay of 127 days. As per the contention of the respondent the petitioners have attended the Court in HMOP and GWOP which reveal the intention of the petitioners to drag on the litigation. Considering all the above reasons, this Court holds that since no convincing reason is substantiated in respect of the delay in filing the appeal, this Court is not inclined to allow the petition." and resultantly dismissed the petition.

Assailing the validity and legality of the order of dismissal dated 18.12.2013 in Crl.M.P. No. 1309 of 2013 in unfiled C.A. No. .. of 2013 passed by the learned Principal Sessions Judge, Madurai, the Revision Petitioners/Petitioners have preferred the present Criminal Revision Petition before this Court contending that the learned Principal Sessions Judge, Madurai had committed an error in dismissing the miscellaneous petition in question (delay condonation petition) by observing that the first Revision Petitioner/Husband had not produced any medical evidence to establish that he was hospitalized.

The Learned counsel for the Revision Petitioners urges before this Court that the learned Principal Sessions Judge, Madurai should have borne in mind an important fact that the order dated 24.08.2012 made in Cr.M.P. No. 4609 of 2012 by the learned Judicial Magistrate No. II, Madurai, was an ex-parte order and as such, the Revision Petitioners must have been provided with an adequate opportunity to take part in the proceedings with a view to substantiate their version/case. Also it is represented on behalf of the petitioners that the delay of 127 days in question is not a too long period and the learned Principal Sessions Judge, Madurai should have taken a lenient and liberal view in allowing the delay condonation petition viz., Crl.M.P. No. 1309 of 2013, overriding technicalities. The Core submission advanced on behalf of the petitioners is that the first petitioner had stated in his affidavit in Crl.M.P. No. 1309 of 2013 that due to dengu fever, he was unable to meet his Learned counsel and file an appeal in time.

Repelling the contention projected on the side of the Revision Petitioners, the Learned Counsel for the Respondent/Wife contends that Crl.M.P. No. 1309 of 2013(delay condonation petition) filed by the Petitioners before the First Appellate Court is not per se maintained in Law, because of the reasons that the first Revision Petitioner had not produced medical certificate to show that he was suffering from dengu fever and the reasons ascribed on behalf of the petitioners in their Crl.M.P. No. 1309 of 2013 before the First Appellate Court that since the first petitioner was admitted in the hospital and as such, not in a position to instruct his counsel to file a counter and as such, an ''ex-parte'' order was passed in his absence and thereafter, he could not meet his counsel to prefer an Appeal in time and as such, there had an occasioned, the delay of 127 days in preferring the appeal, could not be taken into account, because of the simple reason that they lack bonafides.

Before the Learned Principal Sessions Judge, Madurai in Crl.M.P. No. 1309 of 2013 in unfiled C.A. No. ..../2013, on behalf of the Revision Petitioners no exhibits were marked and no one witness was examined. Even on the side of the Respondent/wife no one was examined as a witness but, Ex. R.1 to R.8 were marked.

After contest, the First Appellate Court in Crl.M.P. No. 1309 of 2013 in unfiled C.A..../2013 dated 18.12.2013 at Paragraph No. 6 had inter alia opined that Ex. R1 to R7 would clearly go to show that the petitioners had appeared on various dates before the lower Court and the Family Court and subsequently, after the order on 24.08.2012 etc,.

In short, the Learned Principal Sessions Judge, Madurai at Paragraph No. 6 of the impugned order in Crl.M.P. No. 1309 of 2013 in unfiled C.A..../2013 dated 18.12.2013, had categorically observed that the petitioners had attended the Court in H.M.O.P and G.W.O.P which reveal their intention to drag on the litigation. Also, the Learned Principal Sessions Judge, Madurai had ultimately opined that no convincing placement were assigned on behalf of the petitioners to condone the delay of 127 days in question and consequently, dismissed the petition for condonation of delay of 127 days in question.

At this stage, a perusal of the Paragraph No. 6 of the impugned order dated 18.12.2013 in Crl.M.P. No. 1309 of 2013 passed by the learned Principal Sessions Judge, Madurai indicates latently and patently that Ex. R.1 was the copy of docket order in Cr.M.P. No. 6375 of 2012 filed by the respondent (Wife) before the learned Judicial Magistrate No. II, Madurai, which shows that the first petitioner was present on 25.10.2012, 29.10.2012 and 01.11.2012. Indeed, Ex. R.2 was the copy of memo of appearance filed on 26.10.2012 (on behalf of the Revision Petitioners before the Learned Judicial Magistrate No. II, Madurai in Crl.M.P. No. 1234 of 2012).

As a matter of fact, Ex. R.3 was the copy of the surrender petition in Cr.M.P. No. 6535 of 2012 filed by the petitioners before the lower Court and the order passed therein show that the presence of the petitioners on 22.10.2012. Ex. R.4 was the copy of petition under Section 317 Cr.P.C., filed before the lower Court based on the instructions of the petitioners. But, copy of the petition in H.M.O.P. No. 192 of 2012 and orders passed therein by the Family Court, Madurai was marked as Ex. R.5 (on behalf of the wife) against the first revision petitioner seeking the relief of divorce, which proved his presence before the Court on 26.09.2012. Again, the copy of petition in G.W.O.P. No. 15 of 2012 filed by the Respondent/Wife was marked as Ex. R.6 and the same points out the presence of the first petitioners on 11.10.2012. Ex. R.7 was the copy of memo of the petition filed before the learned Judicial Magistrate No. II, Madurai in Crl.M.P. No. 1234 of 2012 in and which, they had remitted the sum of Rs. 10,000/- towards penalty. Ex. R.8 was the Discharge summary of the respondent/wife.

Apart from the above, the pith and substance of the stand taken on behalf of the Respondent/wife is that from Ex. R.1 to Ex. R.7 marked in Crl.M.P. No. 1309 of 2013 in unfiled C.A..../2013 before the learned Principal Sessions Judge, Madurai. Unerringly point out that the Revision Petitioners before the Lower Court had appeared on numerous dates and the Family Court subsequently, after the order on 24.08.2012 that apart, there was no proof for the first petitioner being hospitalized for dengu fever on 24.08.2012. Furthermore, it is the plea projected on the side of the Respondent/Wife that although the first Revision Petitioner was reportedly hospitalized, the other petitioners could have met the Learned counsel and further proceeded with the filing of the ''Appeal'' within time. However, such a course was not adopted on the part of the Revision petitioners. Therefore, the trial Court had considered the relevant facts into the consideration and ultimately came to the conclusion that the delay of 127 days in preferring Cr.M.P. No. 1309 of 2013 was not properly explained to the subjective satisfaction of the learned Principal Sessions Judge, Madurai and viewed in that perspective, there is no illegality in the impugned order dated 18.12.2013 passed in Crl.M.P. No. 1309 of 2013.

This Court has heard the learned counsel for the petitioners and the learned counsel appearing for the respondent/wife and noticed their contentions.

It is not in dispute that the Revision Petitioners before the Learned Principal District Judge, Madurai as petitioners had projected Crl.M.P. No. 1309 of 2013 in unfiled Crl.A..../2013, praying to condone the delay of 127 days in preferring the Criminal Appeal as against the order in Crl.M.P. No. 4609 of 2012 dated 24.08.2012 in Crl.M.P. No. 1234 of 2012 on the file of the Learned Judicial Magistrate No. II, Madurai.

Admittedly, the Crl.M.P. No. 1309 of 2013 filed by the Revision Petitioners (under Section 5 of the Limitation Act 1963) was dismissed by the Learned Principal District Judge, Madurai on 18.12.2013.

It is to be noted that when a Court of Law deal with an application for condonation of delay, it is to take a lenient and liberal view, avoiding a hypertechnical and pedantic approach. In reality, no litigant files an ''Appeal'' with deliberate delay. If he does no, he runs a serious risk. If the delay condonation petition is dismissed at the threshold by a Court of Law, then there is a possibility of a meritorious matter being thrown out at the initial stage. Per contra, if the delay condonation petition is allowed by a Court of Law, by taking a lenient and liberal view, there is every possibility to hear the main matter on merits, of course after providing adequate opportunities to the parties concerned.

It is true that a person/litigant cannot ask for condoning the delay, before a Court of law either as a matter of right or as a matter of routine, as opined by this Court. The ''term sufficient cause'' must be established by a person to condone the delay either by a Revisional or by the appellate forum. Even some omissions/lapses on the side of a litigant cannot be a factor to reject his request for condoning the delay and to close the door against him once for all.

Be that as it may, even though the Learned Principal Sessions Judge, Madurai in Crl.M.P. No. 1309 of 2013 while passing the impugned order on 18.12.2013 had observed that the first petitioner had not proved the fact that he was hospitalized for dengu fever on 24.08.2012 and further, Ex. R.1 to R.7 marked on the side of the Revision Petitioners would clearly point out that the petitioners had appeared before the Lower Court on numerous dates and the Family Court, subsequently after the order on 24.08.2012, at this stage, this Court unhesitatingly holds that the petitioners'' conduct are not acceptable one, based on the facts and circumstances of the present case. However, this Court opines that because of some omissions/lapses on the part of the petitioners, they cannot be penalised, considering the substantial issues involved between the parties. Therefore, with a view to deliver substantial justice, this Court by taking a lenient and liberal and also a justice oriented approach condones the delay of 127 days in question in Crl.M.P. No. 1309 of 2013 mainly with a view to advance the cause of justice.

In that view of the matter, this Court interferes with the impugned order dated 18.12.2013 in Crl.M.P. No. 1309 of 2013 passed by the Learned Principal Sessions Judge, Madurai. Consequently, the Revision Petition succeeds.

In fine, the Revision Petition is allowed, the order dated 18.12.2013 passed by the Learned Principal Sessions Judge, Madurai in Crl.M.P. No. 1309 of 2013, is set aside by this Court for the reasons assigned in this Revision petition. Resultantly, the Crl.M.P. No. 1309 of 2013 filed by the petitioners before the Learned Principal Sessions Judge, Madurai is allowed. In as much as, the Criminal Revision Case (MD). No. 74 of 2014 on the file of this Court is allowed, this Court directs the Learned Principal Sessions Judge, Madurai to take the unfiled Appeal to file and to assign number thereto and to take up the said Criminal Appeal on its file and to dispose of the said Appeal, in the manner known to law and in accordance with law, (of course after providing adequate necessary opportunities to both sides), in any event, within a period of one month from the date of receipt of a copy of this order. The Learned Principal Sessions Judge, Madurai is directed to call for the necessary records from the Trial Court and to dispose of the Appeal within the time determined by this Court. Liberty is granted to the respective parties to raise all factual and legal pleas and the Learned Principal Sessions Judge, Madurai is to take into account of the same and to dispose of the Appeal, uninfluenced and untrammeled with any of the observations made by this Court in this Revision. Consequently, the connected miscellaneous petition is closed.