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Judgment
G. Rajasuria, J.—This Civil Revision Petition has been filed to get set aside the petition and order dated 17.06.2011 passed in I.A. No. 514
of 2010 in the unnumbered A.S. No. ......of 2010, by the learned Sub Judge Tuticorin. Heard both sides.
The learned Counsel for the revision petitioners would echo the cri de coeur and heart burns of his clients to the effect that his clients presented
the memorandum of appeal with the delay petition to get the delay of 116 days condoned in filing the appeal on the main ground that their
Advocate misplaced the memorandum of appeal and wherefore, they could not file it in time; after hearing both sides, the lower Court dismissed
the application, mainly on the ground that the affidavit was sworn in by the advocate himself.
Being aggrieved by and dissatisfied with the order of the lower Court, this Civil Revision Petition has been focussed by the revision petitioners
on various grounds.
The point for consideration is as to whether the delay could be condoned or not?
The Point:
This is a peculiar case, wherein the delay occurred not because of the party, but because of the Advocate and the Advocate himself virtually
filed the affidavit taking the burden on himself. However, the party could have filed an affidavit also. But taking into account that the delay is not a
huge, I am of the considered view that the delay should be condoned, because the right of appeal is an valuable one and because of the mistake
committed by the Advocate, the party should not suffer.
Hence, I am of the considered view that the delay of 116 days in filing the appeal could be condoned. The point is answered accordingly.
Wherefore, the delay of 116 days in filing the appeal is condoned, subject to payment of costs of Rs. 2,000/- (Rupees Two Thousand Only) by
the revision petitioners to the respondents within a period of one week from today.
On such compliance, the lower Court shall number the I.A. filed under Order IX Rule 13 of the CPC Code and process it as per law and
thereafter, on such application being allowed, number the appeal and dispose of the same as expeditiously as possible. Should the revision
petitioners fail to comply with the condition stipulated by this Court, this order will not enure to their benefit.
On balance, this Civil Revision Petition is allowed as above. No costs.