The Madras Metropolitan Development Authority vs Vinod Bhatia and Another

Abdul Hadi, J.—Despite notice to respondents 1 and 2, they have not chosen to enter their appearance. Notice to first respondent has been

served on 6.5.1995 and notice to the 2nd respondent has been served on 10.5.1995.

The first defendant in O.S. No. 3199 of 1987 on the file of IV Assistant City Civil Court, Madras, has filed this revision against the order of

dismissal in C.M.P. No. 581 of 1993 dated 24.1.1994. The suit O.S. No. 3199 of 1987 was filed by the 1st respondent herein against the

petitioner as well as the 2nd respondent herein. The said suit is filed for declaration that the suit building was constructed in accordance with the

approved plan and for consequential injunction. The suit O.S. No. 3199 of 1987 was decreed on 12.12.1990. Aggrieved by the judgment and

decree dated 12.12.1990, the defendant in O.S. No. 3199 of 1987 (petitioner herein) filed first appeal but there was 29 days delay in filing the

abovesaid appeal the petitioner has filed C.M.P. No. 581 of 1993 for condonation of delay of 29 days in filing A.S. No. (SI No. 21577 of 1993)

of 1993.

In the supporting affidavit in C.M.P. No. 581 of 1993 the petitioner herein had stated that the 1st respondent filed suit for a declaration and for

a permanent injunction against the petitioner and obtained a decree and judgment in his favour on 12.12.1990. The copy application was made

ready on 21.12.1990 and copy was made ready on 9.3.1993 and the petitioner got copy on 16.3.1993 and filed the first appeal on 29.4.1993,

and hence, there is a delay of 29 days. The supporting affidavit in C.M.P. No. 581 of 1993 gives out the following reasons for excusing the delay:

...That due to delay in collecting the connected planning permission files as well as the enforcement files, to prepare the appeal, the appeal time got

expired and hence there is a delay of 29 days.

With reference to this relevant allegations, all that is stated in the counter filed by the plaintiff runs as follows:

The allegations are vague namely delay in taking the connected planning permission files and the enforcement files....The planning files and

enforcement files are not necessary for preparing the appeal. From the grounds of appeal it is seen that no reference has been made to the said

files.

Thus, I find that it is not even averred in the counter that the abovesaid allegation found in the supporting affidavit is not admitted and the

petitioner is put to strict proof of the same. But what is stated is that the said allegation is vague and there is no necessity for having planning Files

and endorsement files for preparing an appeal.

While there was a delay of 29 days, learned Judge in his impugned order says that it is 51 days in filing the first appeal. This is not factually

correct. Presumably he calculates the sum total of (1) the alleged delay in filing the copy of application by 9 days (that is between 12.12.1990 the

date of order and 21.12.1990), (2) the alleged delay between the date when the copy was made ready namely, 9.3.1993 and the date when the

appeal was filed, namely 29.4.1993, which is wrongly stated to be 14 days, and (3) the abovesaid 29 days delay and wrongly comes to the

conclusion that the delay in all is 51 days. First of all it is not known how the learned Judge came to this conclusion of 14 days delay. The time

between 9.3.1993 to 29.4.1993 is one month and 14 days and not simply 14 days. That apart, the learned Judge has grossly failed to note that the

delay has to be calculated only from the last date in which the appellant could have filed the appeal as per the limitation Act. What has happened

earlier to that date, cannot be counted at all in calculating the number of days delay. The Court below has patently erred in coming to the

conclusion that the delay is actually 51 days. It is very unfortunate that the learned Judge has committed such gross and Patent error in a very

pimple matter of calculating the number of days delay in filing the first appeal. The delay is only 29 days and the reasons given in the supporting

affidavit are neither denied nor stated to be atleast not admitted, by the respondent in his counter. There is a clear error of jurisdiction in the

impugned order and accordingly, the order in C.M.P. No. 581 of 1993 is set aside and the revision is allowed.

In the result, the civil revision is allowed. No costs.