A. Muthusamy vs Muniammal and Others

R. Banumathi, J.—This revision is preferred against the order dated 6.1.2005, passed in LA. No. 401/2004 in un-numbered A.S.C.F.R.

No. 14873/2004 on the file of the Principal District Court, Erode, dismissing the petition and declining to condone the delay of 477 days in

representing the appeal. Defendant is the Revision Petitioner.

The Revision Petitioner/Defendant is the son of the first Respondent. Respondents 2 to 4 are the sisters of the Revision Petitioner. The suit was

filed by the Respondent in O.S. No. 70/1997 for partition which was decreed on 15.7.2002. The Revision Petitioner preferred an Appeal on

11.4.2003, which was returned on 21.4.2003 and the case was not represented within the stipulated time.

The Revision Petitioner has filed I.A. No. 401/2004 praying condonation of delay of 477 days in representing the appeal. According to the

Revision Petitioner, he has been conducting business in several towns on commission basis and that he could not meet his counsel to give

instructions in proceeding with the appeal. It is further stated that the Petitioner has been taking steps to settle the matter with his mother and sister

but the settlement failed. When he met his counsel to represent the appeal, there was a delay of 477 days in representing the same and the delay is

not wilful.

The application was resisted by the Respondents contending that the petition has been filed only to delay the allotment of due shares to the

Respondents. The Respondents have filed application for appointment of Advocate Commissioner and the Commissioner has also filed a Report

on 24.9.2004. At the stage of passing of Final Decree, to drag on the proceedings, the Revision Petitioner has filed the application to condone the

delay in filing the appeal and there is no bona fide. Finding that the delay is not properly explained, the trial Court declined to condone the delay

and dismissed the application, against which the present revision is filed.

The learned Counsel for the Revision Petitioner has submitted that condoning the delay in representation is between the Court and the appellant

and showing indulgence to the appellant in condoning the delay cannot be objected to by the Respondents. It is further submitted that the first

Appellate Court being the final Court on factual aspects, an opportunity is to be given to the Defendant to challenge the correctness of the

Judgment and Decree in O.S. No. 70/1997.

Countering the arguments, the learned Counsel for the Respondents has submitted that the inordinate delay of 477 days in representing the delay

is not properly explained. It is further submitted that valuable rights accrued to the Respondents cannot be defeated by showing indulgence to the

Revision Petitioners.

The appeal was filed on 11.4.2003; subsequently returned on 21.4.2003 for rectification of defects. Thereafter, the Revision Petitioner has not

represented it for a long time. There was a delay of 477 days in representing the appeal. The contention of the Revision Petitioner that he had to

travel to many places in connection with his business and that he could not contact his counsel is not substantiated by any material. No material had

been produced showing that the Revision Petitioner was travelling several places.

The Commissioner has filed his report and hence valuable right has accrued to the Respondents who are none other than mother and sister of

the Revision Petitioner. Such valuable rights accrued to the Respondents cannot be allowed to be defeated by showing indulgence to the Revision

Petitioner by condoning the delay.

Contending that condoning the delay in representation is between the Court and the Appellant, the learned Counsel for the Revision Petitioner

submitted that the Respondent cannot have any objection for condoning the delay. It is further submitted that the Court should not proceed with

the tendency of finding fault with the cause shown and negative the reasons for the delay in a casual manner. Though the condonation of delay in

representation is between the Court and the Appellant, the Court should not lose sight of the fact that by not taking steps in representing the appeal

within the prescribed time, valuable right has accrued to the Respondents, which should not be lightly be defeated by condoning the delay in a

routine-like manner. By condoning the delay in representation, litigation cannot be allowed to be kept alive for a long time.

In the Judgment M.K. Prasad Vs. P. Arumogam, , it has been held:

Again in The State of West Bengal Vs. The Administrator, Howrah Municipality and Others, and G. Ramegowda, Major and Ors Vs. Special

Land Acquisition Officer, Bangalore, , this Court observed that the expression ""sufficient cause"" in Section 5 of the Limitation Act must receive a

liberal construction so as to advance substantial justice and generally delays be condoned in the interest of justice where gross negligence or

deliberate inaction or lack of bona fides is not imputable to the party seeking condonation of delay. Law of limitation has been enacted to serve the

interests of justice and not to defeat it. Again in N. Balakrishnan v. M. Krishnamurthy 1990 (1) LW 739 this Court held that acceptability of

explanation for the delay is the sole criterion and length of delay is not relevant, in the absence of anything showing mala fide or deliberate delay as

a dilatory tactic, the Court should normally condone the delay....

In a recent Judgment of the Supreme Court Ram Nath Sao @ Ram Nath Sahu and Others Vs. Gobardhan Sao and Others, , the position has

been succinctly set out which reads as under:

...Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona

fides can be imputed to the defaulting party. On the other hand, while considering the matter the Courts should not lose sight of the fact that by not

taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning the delay

in a routine-like manner.

Referring to the above decisions, in the decision Sundar Gnanaolivu, rep. by his Power of Attorney Agent, Mr. Rukmini v. Rajendran

Gnanavolivu, rep. by its Power of Attorney Agent, Veina Gnanavolivu 2003 (1) LW 585 the Division Bench of this Court has held as under:

On a conspectus reading of the above principles set out in the various judgments, it is well settled that a liberal approach should be extended

while considering the application for condonation of delay. Sufficient caution has been exhibited to note that wherever there is lack of bona fides or

attempt to hoodwink the Court by the part concerned who has come forward with an implication for condonation of delay, in such cases, no

indulgence should be shown by condoning the delay applied for. It is also clear to the effect that it is not the number of days of delay that matters,

but he attitude of the party which caused the delay. In other words when the Court finds that the party who failed to approach the Court within the

time stipulated comes forward with an explanation for condoning the delay, the Court if satisfied that the delay occasioned not due to the deliberate

conduct of the party, but cue to any other reason, then by sufficiently compensating the prejudice caused to the other side monetarily, the

condonation of delay can be favourably ordered.

Though the above observations are made in the proceedings u/s 5 of the Limitation Act, those principles are applicable while considering the

delay in representation of the papers. The delay of 477 days appears to be due to deliberate in action on the part of the Revision Petitioner.

The learned Counsel for the Revision Petitioner has submitted that by declining to condone the delay in representation of the appeal, the

Revision Petitioner would be deprived of the opportunity from filing the appeal in the first Appellate Court. Contentions of the parties in the suit

does not merit acceptance. In the partition suit, after all what is the contention of the Revision Petitioner/Appellant. The mother and sisters are

entitled to 4/5th share. In fact, there was also talks of settlement which did not fructify. The Defendant cannot have any valid defence against the

lawful share of the mother and sister. Hence the contention that the Revision Petitioner would be deprived of valuable right has no merits.

In consideration of the inordinate delay in representing the appeal, the learned District Judge has rightly declined to condone the delay. The

impugned order does not suffer from any serious infirmity warranting interference.

For the foregoing reasons, the order passed in I.A. No. 401/2004 in un-numbered A.S.C.F.R. No. 14873/2004 on the file of the Principal

District Court, Erode, dated 6.1.2005, is confirmed and this revision is dismissed. Consequently, V.C.M.P. No. 12266/2005 and C.M.P. No.

8603/2005 are closed. In the circumstances of the case, there is no order as to costs.