Rathinathangam and 3 others vs Sree Padmanabhan and State

N. Arumugham, J.—The four accused in C.C. No. 138/84 before the Additional Chief Magistrate, Nagercoil, who were acquitted of the

charges for the offences under Sections 147, 447 and 323 I.P.C. are the revision petitioners herein challenging the propriety and legality of the

impugned order passed by the learned Sessions Judge at Nagercoil made in Crl.M.P.No.1829 of 1991 dated 15.11.1991 condoning the delay of

90 days in preferring Crl.R.P.No.70 of 1991 and allowed the petition filed u/s 5 of the Limitation Act.

The four revision petitioners herein are the accused for the offences under Sections 147, 447 and 323 I.P.C. and tried by the learned trial

Magistrate and consequently after the trial they were acquitted of all the charges and against which, it appears that there was no appeal preferred

by the affected parties or the State. However,CrI.M.P.No.1829 of 1991 was filed u/s 5 of the Limitation Act by the complainant by name

Padmanabhan, son of Thangappa Nadar, adding these four accused as respondents 1 to 4 along with the State represented by the Public

Prosecutor as fifth respondent, praying to condone the delay of 90 days in preferring Crl.R.P.No.70 of 1991 against the order of acquittal. The

case records show that the fifth respondent viz., the Assistant Public Prosecutor appearing for the State alone had the notice and made an

endorsement that he has no objection for allowing the condone delay petition and that no notice was served upon the respondents 1 to 4 who are

the revision petitioners for the obvious reasons known to the petitioner therein. The learned Sessions Judge, while entertaining the petition above

referred to has also not directed notice to be served upon the respondents 1 to 4. It is noted that they are the accused persons tried for the

offences above referred to and ultimately found not guilty and consequently acquitted thereupon. For the mere reasoning of the fifth respondent had

said ''no objection'' for the condoning the delay, the learned Session Judge, by merely saying that there is enough ground to condone the delay, has

allowed the said petition. Aggrieved at this, the four accused/respondents 1 to 4 have preferred this Revision challenging the impugned order as

aforementioned.

Mr. K.S. Rajagopalan, the Learned Counsel appearing for the revision petitioners dwelt his attack upon the impugned order passed by the

learned Sessions Judge on the ground that the impugned order passed by the learned Sessions Judge was against the principles of natural justice

and the spirit of law accepted by the judicial norms consistently all through has not been followed in this case and that the four accused, the revision

petitioners herein were not at all served with the notice of the petition filed u/s 5 of the Limitation Act. Section 5 of the Limitation Act, 1963 runs

like this:

Extension of prescribed period in certain cases-Any appeal or any application other than an application under any of the provisions of Order XXI

of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had

sufficient cause for not preferring the appeal or making the application within such period.

Explanation-The fact that the appellant or the application was misled by any order, practice or judgment of the High Court in ascertaining or

computing the prescribed period may be sufficient cause within the meaning of this section.

A mere casual reading of the above Section of law envisages the parameter to be adhered in allowing an application or request to condone the

delay in preferring any appeal or revision or otherwise in this subject to the satisfaction to be arrived at by the Court of law, as the cause for such

delay in preferring the said appeal or revision or application ought to be adequate and sufficient. It is thus, this ingredient alone which has been spelt

out clearly in the section. What is meant by the sufficient cause and to what extent it can be meant has been attempted to be explained in the

Explanation provided to the said Section. A combined reading of the Section with its Explanation provided therefor would provide a minimum

understanding for all the Courts that the above remedy has to be given on the explanation of the things that happened beyond the control or

adequate reasoning for the delay and that must be identified and ascertained only after hearing the respective parties to the litigation. If such an

exercise is to be done, both parties to the litigation or the application must be heard and following the full opportunity to be given it must be the

intention of the Legislature in providing such opportunity in-built in the above section of law and if all these taken to mean in the legal perspective

on the basic of principles of natural justice, then the concerned parties to such litigation or the petition must necessarily be heard. In the case on

hand also it is noticed that the fifth respondent alone was served with the notice of the petition but not the others, namely respondents 1 to 4 who

are the accused charged for the offences and finally acquitted and for this reason they are deemed to be the main persons to be heard particularly

and without ordering the notice and hearing them, the allowing of the petition by condoning the delay of 90 days is, in my respectful view, totally

against the principles of natural justice and hit by the doctrine of ''audi alterum partem''.

That apart, the learned Sessions Judge while passing the impugned order had not found nor even referred to any reasoning or ground to

condone the delay. What is meant by ''sufficient cause'' as spelt out in the Explanation in the Section has not been identified or ascertained in the

instant case and on this ground also the impugned order is liable to the set aside.

The delay of 90 days in this case should not be used without giving notice to the respondents 1 to 4 because the revision was sought to be filed

after a period of limitation prescribed therefore and consequently respondents 1 to 4 acquired a valuable right and such right cannot be deprived

without notice to them. In this context, it has become necessary for me to advert the ratio laid down by the Privy Council in Krishnaswami

Panikondar v. Ramaswami Chettiar (ILR 41 Mad 421 : AIR 1917 P.C.179) which was followed very much by the learned single Judo of this

Court in In Re: Raman, . The ratio spelt-out above is extracted as hereunder: -

...in terms it purported to deprive him of a valuable right, for it put in peril the finality of the decision in his favour, so that to preclude him from

questioning its propriety would amount to a denial of justice. It must, therefore, in common fairness be regarded as a tacit term of an order like the

present that though unqualified in expression it should be open to reconsideration at the instance of the party prejudicially affected; and this view is

sanctioned by the practice of the Courts in India.

Besides, the Supreme Court in very many cases has consistently and repeatedly held that the affected party while acquiring a right of acquittal by

rendering a judgment by a Court of Law must necessarily be made a party while the order of acquittal is challenged and without hearing them to

decide any matter among themselves would automatically cause serious prejudice to them and that, therefore, the said aspect is clearly against all

the norms of the principles of natural justice. The case records in the instant case do not have any material to show that the revision petitioners

were served with the notice of the petition filed u/s 5 of the Limitation Act. Though the decision to be arrived at in condoning the delay as provided

u/s 5 is purely discretionary, it is subject to the principles of natural justice and only upon following the said principle the Court has to legally

exercise its power in order to arrive at the full satisfaction as provided therefor. If for any reason it has not been done, then the said order is vitiated

with very illegality and impropriety.

None appeared on behalf of the first respondent herein, though he has entered appearance through the bar and his name was printed in the list

for disposal for the last more than a week. Under such circumstances, I do not find any reason to reject the contention raised on behalf of the

revision petitioners. For the said reasonings, the revision has to succeed and'' the impugned order is liable to be set aside.

In the result, for all the foregoing reasoning, the revision succeeds and accordingly it is allowed. Consequently, the impugned order passed by

the learned Sessions judge, Nagercoil in Crl. M.P.No.1829 of 1991 in Crl. R.P.No 70 of 1991 dated 15.11.1991 is hereby set aside.