A. Govindarajan vs V. Alagirisamy Naicker, A. Ravindran, A. Alagirisamy Naicker and The Commissioner

M. Venugopal, J.—The Civil Revision Petitioner/Petitioner/Appellant/ Plaintiff has filed the present Civil Revision Petition as against the

order dated 15.09.2003 passed in I.A. No. 417 of 2001 in A.S. No. (Un-numbered) on the file of the learned Subordinate Judge, Aruppukkottai.

The first appellate authority/learned Sub Judge, Aruppukkottai, while passing orders in I.A. No. 417 of 2001 in Unnumbered A.S. on

15.09.2003, has among other things observed that ''in I.A. No. 417 of 2001, the delay of 788 days has occurred and that there are contradictions

in regard to the reason assigned in the affidavit in I.A. No. 417 of 2001 filed by the revision Petitioner/Plaintiff and that of the evidence adduced

before the Court and in the light of these contradictions, it is evident that all the reasons assigned in the affidavit in I.A. No. 417 of 2001 have not

been proved and resultantly, dismissed the application without costs.�

The learned Counsel for the Petitioner/Petitioner/ Appellant/Plaintiff submits that the first appellate authority namely the learned Sub Judge,

Aruppukkottai, has failed to appreciate the facts of the case and in fact, the oral evidence given by the revision Petitioner/Plaintiff suggests that the

revision Petitioner has not been in station and has been preoccupied with his business and has been traveling a lot. It is the contention of the learned

Counsel for the Petitioner that the first appellate authority/learned Sub Judge has been wrongly carried away by the mention of various places of

visit in the evidence of the Petitioner, but significantly has failed to appreciate to correlate the evidence which will show that the Petitioner has not

been rooted in one place and has been moving around in connection with this business.

The learned Counsel for the Petitioner urges before this Court that the very fact that the Petitioner/ Plaintiff has been in Tuticorin and thereafter,

only for a short time in Aruppukkottai and the averments as regards his stay in Namakkal, will speak of the fact that he has been preoccupied with

his business which has not been looked into by the first appellate authority/learned Sub Judge, Aruppukkottai, which is resulted in serious

miscarriage of justice and therefore, prays for allowing the present Civil Revision Petition in the interest of justice.

Before the first appellate authority/learned Sub Judge in I.A. No. 417 of 2001, the Respondents 1 and 2/Defendants 1 and 2 have remained ex-

parte. However, the Respondents 3 and 4/Defendants 3 and 4 have filed their counter to I.A. No. 417 of 2001.

In the counter filed by the third Respondent/third Defendant, it is among other things mentioned that the Petitioner/Appellant/Plaintiff is an

agriculturist and he is not doing any other occupation and moreover, on 09.04.1999 and subsequently, the Petitioner has been residing in

Aruppukkottai. That apart, the Petitioner has not projected the appeal in time and has filed the same with an inordinate delay with a view to cause

unnecessary hardship, etc. to him at his advanced age and the application is not bona fide.

The stand of the third Respondent is that O.S. No. 248 of 1995 has been mentioned in I.A. No. 417 of 2001 which has been filed by the

revision Petitioner''s father namely Alagarsamy Naicker, the first Defendant and one Ravindran, who is the second Defendant against him by

conspiring together in which a judgment has been delivered in his favour. However, he has filed O.S. No. 251 of 1993 before the learned District

Munsif, Aruppukkottai, which ended in his favour. Subsequently, he filed I.A. No. 43 of 2001 on the file of the learned District Munsif,

Aruppukkottai, for a contempt of Court and the revision Petitioner has not received the notice in the contempt application on 23.03.2001 and

subsequently, on 29.06.2001, he has appeared through a Counsel. After the appearance of the Petitioner in the contempt application, the

Petitioner''s father, Alagarsamy has been informed of the details and later, only on 30.08.2001, the revision Petitioner with a delay, has preferred

the instant appeal.

Also, the Petitioner as well as his father know about the case details daily. The Petitioner''s father, Alagarsamy is coming to the Court as well as

to the lawyer''s office each and every day and the proper reason has not been assigned for the delay of 788 days.

In the counter of the fourth Respondent/fourth Defendant to I.A. No. 417 of 2001, it is stated that the Petitioner has kept his family at

Aruppukkottai and he has gone to the outstation and that the family members after seeing the lawyer''s letter would have given intimation to the

Petitioner and the application which has not been filed in time, but after the delay of 2 years, is not legally maintainable and therefore, is liable to be

dismissed.

The revision Petitioner/Plaintiff in his affidavit in I.A. No. 417 of 2001 has stated that after completion of enquiry on his side in O.S. No. 248

of 1995 on the file of the learned District Munsif, Aruppukkottai, he has informed his Counsel to look after the other affairs and has gone outstation

in connection with his business and his Counsel has informed to his Aruppukkottai address about the judgment delivered on 09.04.1999 in O.S.

No. 248 of 1995 and since has been gone to outstations in connection with his business, he has not received proper information. Further, he has

forgotten to know about the result of his case on account of his interest in business and only when he has come to Aruppukkottai in the first week

of June, he has come to know of the result of the case and hence, in preferring the appeal, there is an occasion of delay of 788 days which has

necessarily to be condoned on account of necessity and justice.

The learned Counsel for the Petitioner/Petitioner/ Appellant/Plaintiff in support of the contention that the condonation of delay application

should be 7 dealt with by a Court of law with a lenient and liberal approach, relies upon the decision of the Division Bench of this Court in B.

Ganesan v. State Bank of India and Ors. reported in (2008) 4 MLJ 1038, where in it is held as follows:

The term ""sufficient cause"" should receive a liberal interpretation in the hands of law Courts. A pedantic approach should not be made and on the

other hand, a pragmatic approach should be made by the Courts of law in the justice delivery system.

When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred.

The evidence of P.W.1 (the revision Petitioner/ Appellant/Plaintiff) before the learned Sub Judge, Aruppukkottai in I.A. No. 417 of 2001 is to

the effect that the suit in O.S. No. 248 of 1995 on the file of the learned District Munsif, Aruppukkottai, has been decreed against him and that

after completion of enquiry on his side, he has gone to Namakkal based on the reason that his Counsel will look after the case and he does not

know as to whether his Counsel has given information about the result of the suit.

The further evidence of P.W.1 (the revision Petitioner/Appellant/Plaintiff) is to the effect that inspite of the sale of the vehicle, he has not been in

a position to settle the money and therefore, he has gone to Namakkal and by conducting the business there, he settled the amount and thereafter,

he has come to Aruppukkottai during the month of June 2002 and afterwards, he has seen the Counsel and made arrangement to prefer an appeal

and in this process, there has occasioned a delay of 788 days in preferring the appeal which has occurred providentially and therefore, prays for

condoning the delay.

However, the evidence of P.W.1 during his cross-examination is to the effect that he does not remember as to when he has gone to the

outstation at the time of conduct of the suit in O.S. No. 248 of 1995 and when the Defendant has been examined in the said suit, at that time he

has not been in Aruppukkottai and that two months prior to the delivery of the judgment, he has gone to the outstation and before leaving for

outstation, he has not enquired with his Counsel as to the status of the suit and further, he has not ascertained from his Counsel as to when the

judgment will be delivered.

Continuing further, it is the evidence of P.W.1 that he has gone to Namakkal in connection with his vehicle business and he has purchased 402

vehicle and that he has indulged in the business of purchase and selling of the vehicle and that he has sold the vehicle to one Rajendran of Tuticorin

who has paid only the advance amount, but he has not paid the balance amount. Further, he has handed over the R.C. Book to him on the day

when the advance amount has been paid by the said Rajendran and when he has gone to Tuticorin to receive the money, the said Rajendran has

not been there at Tuticorin and he has been informed that the said Rajendran has been gone to the outstation and he has come back to

Aruppukkottai and he has enquired at Aruppukkottai for six months and his whereabouts were not known and till date, he has not received the

money and he is continuing to enquire about him till date and during the said period, he has not met his Counsel and has not been in a position to

ask for details.

It is significant for this Court to point out that in the affidavit in I.A. No. 417 of 2001 filed by the revision Petitioner, in paragraph 2, he has

stated that his Counsel has informed the details of judgment passed in O.S. No. 248 of 1995 on 09.04.1999 to his address at Aruppukkottai and

sine has gone to the outstation in connection with his business, he has not got the information properly and because of his interest in the business, he

has forgotten to know about the result of the suit and only after coming to Aruppukkottai during the first week of the month of June, he has made

arrangement to prefer an appeal and in this way, the delay of 788 days has occurred in preferring the appeal.

The categorical version of P.W.1 in the cross-examination that when he has remained in Aruppukkottai for six months after his return to

Aruppukkottai from Tuticorin where he has reportedly gone to receive the money from the said Rajendran, clearly shows that after his Counsel has

informed him to the address at Aruppukkottai about the details of the judgment being delivered in O.S. No. 248 of 1995 on 09.04.1999, he has

not taken any immediate steps to prefer an appeal. In short, the evidence of P.W.1 in the cross-examination is quite different from that of the

evidence adduced during the chief-examination before the learned Sub Judge in I.A. No. 417 of 2001.

At this juncture, this Court points out that the term ""sufficient cause"" is to necessarily receive a lenient and liberal interpretation in the hands of a

Court of law. A pragmatic common sense approach is to be adopted by a Court while dealing with an application for condonation of delay.

Equally, there is no quarrel over the proposition that when substantial justice and technical considerations are pitted against each other, cause of

substantial justice deserves to be preferred. It is also well accepted that the judiciary in the Justice Delivery System is respected because of its

power to remove injustice on technical grounds and it is capable of removing so and further, it is expected to do so.

As far as the present case is concerned, since the evidence of P.W.1 differs substantially as to the chief examination from that of the cross-

examination as discussed supra and all the more, when the revision Petitioner/Appellant/Plaintiff has remained in Aruppukkottai for six months, he

has not taken any diligent, effective and efficacious steps in regard to the filing of an appeal as against the judgment and decree of the trial Court

passed in O.S. No. 248 of 1995 on 09.04.1999, this Court is unable to adopt a lenient and liberal view to condone the inordinate delay of 788

days in preferring the appeal, because of the fact that the valuable right accrued to the other side by virtue of the decree passed in the suit in O.S.

No. 248 of 1995, ought not to be displaced by a Court of law in a cavalier fashion or as a matter of routine. Viewed in that perspective, the

present Civil Revision Petition fails.

In the result, this Civil Revision Petition is dismissed leaving the parties to bear their own costs.