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Judgment
Motilal B. Naik, J.—Heard the learned Counsel for the petitioner as well as the learned Counsel for the respondents at length.
The petitioner has preferred an appeal against the judgment and decree in O.S.No. 935 of 1986 before the District Court, Chittoor. Along with the appeal an application u/s 5 of the Limitation Act seeking to condone delay of 90 days was also filed. It is stated that the application filed for condonation of delay was not considered by the Court below and was dismissed. Aggrieved by the said dismissal order, the present Civil Revision Petition is filed.
Sri. A.T.M. Rangaramanujam, the learned Counsel appearing for the petitioner states that the delay in preferring the appeal against the judgment and decree in O.S.No. 935 of 1986 dated 15-7-1993 though was not properly explained, but the fact remains that the petitioner was suffering from Blood Pressure and heart ailment and was advised bed rest by a Doctor for the period from 15-7-1993 to 15-10-1993. A certificate to that effect was also placed before the Court below, and the Court has not properly appreciated the gist of the application and has only technically dealt with the matter and dismissed the application.
On the contrary, Sri. D.V. Sitarama Murthy, the learned Counsel appearing for the respondents states that it is a settled law, that when an application is filed seeking to condone delay, day-to-day delay has to be necessarily explained to the satisfaction of the Courts. In the instant case, it is stated by the learned counsel that the petitioner has taken the Courts for granted and as though filed an application way back in the year 1993, but has produced a Doctor''s Certificate dated 24-4-1994, that itself shows the conduct of the petitioner in dealing with the matter. The learned Counsel further states that the petitioner is not vigilent in prosecuting the matter, and therefore, the story that the petitioner was ill and under treatment is falsified by the fact of discloser on the affidavit stating that he was undergoing treatment in a private clinic at Madras. No certificate from Madras has been placed before the Court, and therefore, the learned Counsel for the respondents contends that no indulgence could be shown in this case.
It is no doubt true that the petitioner has not come up before the Court with clean hands. May be certain circumstances must have come on his way to represent the case in time by way of filing an appeal, but to prosecute the appeal he has to necessarily depend upon the counsel and other factors. Since the delay is of 90 days, I am of the view, that when substantial rights of the parties are involved the Courts ought to take a lenient view in condoning the delay of 90 days. Accordingly I hold that the petitioner is entitled to maintain an application filed u/s 5 of the Limitation Act. Accordingly the order in I.A.No.390 of 1993 dated 15-4-1994 is set aside. Consequently, the application is allowed.
The subject matter of suit property belongs to Sri Vyasaraman where orphan children are brought up. The petitioner herein who was holding lease of the entire property on terms of payment of certain rents seems to have not complied with the terms and conditions, and therefore the respondents were forced to file a suit O.S.No. 935 of 1986 seeking re-delivery of the schedule property which was ultimately decreed on 15-7-1993 in their favour. Be that as it may, I shall not venture to say anything on merits, as it may affect the interest of the contesting parties. Suffice to say, since the matter is of paramount importance to the orphan children, who are brought up by the management, the lower Court would ensure disposal of the appeal on being numbered on or before 30-11-1994. It is made clear, on the appeal being numbered, the Court would fix necessary date of hearing and intimate the parties concerned. On the date being fixed the parties would invariably appear before the Court and assist the Court in disposing of the appeal. In the absence of non-co-operation from any of the parties concerned with the litigation, the Court may proceed to dispose of the appeal on merits preferably by 30-11-1994.
The petitioner shall deposit an amount of Rs. 15,000/- on or before 31-10-1994 to the credit of O.S. No. 935 of 1986 on the file of the I Additional District Munsif, Chittoor. On such deposit, it is open to the respondents to withdraw the same without furnishing any security.. However, such deposit and withdrawal would be subject to the result in the appeal. In default of deposit of the amount by 31-10-1994, the appeal which is being preferred shall stand dismissed.
The Civil Revision Petition is allowed subject to the payment of costs of Rs. 1,500/- on or before 31-10-1994 to the plaintiff. The said costs should also be deposited to the credit of O.S. No. 935 of 1986. On such deposit, it will be open to the plaintiff to withdraw the same without furnishing any security.