Varasiddhi Vinayagar Temple vs V. Radha

V. Periya Karuppiah, J.—This revision petition has been directed against the order dated 22.02.2002 passed by the Principal Judge, City

Civil Court, Chennai, in CMP. No. 1258 of 2001 in A.S.SR. No. 24156 of 2001.

The revision petitioner herein is the appellant before the lower Appellate Court. He had filed the petition to condone the delay of 235 days in

preferring the appeal against the judgment and decree passed by the lower Court in dismissing the suit filed by the plaintiff in O.S. No. 759 of

2001 on 14.07.1992. The said condonation petition was dismissed by the lower Appellate Court, against which the present revision has been filed.

Heard the learned Counsel for the petitioner and the learned Counsel for the respondent.

The learned Counsel for the petitioner would submit in his argument that the judgment in the Suit O.S. No. 759 of 1988 was delivered on

14.07.1992 and the certified copies of the judgment and decree were delivered on 04.09.2000. Further, the petitioner/appellant had to get the

permission of the higher authorities and also to get the opinion from the Government Pleader. The learned Counsel for the petitioner would further

submit that the copies of the judgment and decree of the lower Court were given to the Deputy Commissioner, HR & CE, but due to heavy

pressure of work, the Deputy Commissioner could not go through the papers in time and only on 02.05.2001 the papers were received from the

Deputy Commissioner. Since it was summer vacation, the appeal has been filed on the re-opening day. In the mean time there was a delay of 275

days in filing the appeal. Hence, the petitioner filed the petition u/s 5 of the Limitation Act to condone the delay. The learned Counsel for the

petitioner would submit that the delay is not wilful and the petitioner/appellant has got a fair chance of success in the appeal.

The learned Counsel for the respondent would submit in his argument that the Executive Officer of the Temple had not obtained permision of his

higher authorities, but it has not been clearly stated by the petitioner on what date he consulted the legal Department in the Office of the

Commissioner HR & CE, and on what date he was directed to get the opinion of the Government Pleader. He would further submit that the delay

has not been properly explained by the petitioner and the delay condonation petition has been rightly dismissed by the first appellate Court after

considering all the relevant materials on records. Hence, he would request the Court to dismiss the revision petition.

Considering the submissions made by the learned Counsel, I could see that the copy application was filed on 23.7.1992 for preferring the

appeal immediately after the pronouncement of the judgment and thereafter, the certified copy was delivered only on 4.9.2000. Thereafter, the

appeal has been presented before the lower appellate Court on the reopening date after the summer vacation in the year 2001. The affidavit filed

by the petitioner would go to show that the said certified copies were handedover to the Government Pleader for obtaining opinion for preferring

appeal and the Deputy Commissioner of HR & CE could not go through the papers due to his work pressure and the papers from Deputy

Commissioner of HR & CE was obtained only on 2.5.2001 and thereafter, the appeal was presented only after the summer vacation, in the mean

time there was a delay of 275 days caused in preferring the appeal against the dismissal of the suit.

The main contention raised by the respondent would be that the petitioner was not interested in getting the certified copy, therefore, he had left

the copy application dismissed and thereafter, it was restored after the reconstruction of documents and if really the the petitioner was interested in

preferring the appeal, he could have obtained the certified copy earlier and that he would have preferred the appeal in time. The long time i.e., from

1992 to 2001 taken by the petitioner would clearly specify about the lethargy on the part of the petitioner. According to him, this is a fit case for

dismissal as done by the lower Court.

The relevant observation in the judgment of the Honourable Apex Court reported in State of Haryana Vs. Chandra Mani and others, , is as

follows:

It would, perhaps, be unfair and unrealistic to put Government and private parties on the same footing in all respects in such matters. Implicit in the

very nature of Governmental functioning is procedural delay incidental to the decision making process. The delay of over one year was accordingly

condoned.

Similarly in yet another judgment reported in Special Tehsildar, Land Acquisition, Kerala Vs. K.V. Ayisumma, , it has been categorically held as

follows:

It is now settled law that when the delay was occasioned at the behest of the Government, it would be very difficult to explain the day to day delay.

The transaction of the business of the Government being done leisurely by officers who had no or evince no personal interest at different levels. No

one takes personal responsibility in processing the matters expeditiously. As a fact at several stages, they take their own time to reach a decision.

Even in spite of pointing at the delay, they do not take expeditious action for ultimate decision in filing the appeal. This case is one of such

instances. It is true that Section 5 of the Limitation Act envisages explanation of the delay to the satisfaction of the Court and in matters of

Limitation Act made no distinction between the State and citizen. Nonetheless adoption of strict standard of proof leads to grave miscarriage of

public justice, it would result in public mischief by skilful management of delay in the process of filing the appeal. The approach of the Court would

be pragmatic but not pedandic. Under those circumstances, the Subordinate Judge had rightly adopted correct approach and had condoned the

delay without insisting upon explaining every day''s delay in filing the review application in the light of the law laid down by this Court. The High

Court was not right in setting aside the order. Delay was rightly condoned.

On a careful perusal of the records, this Court could see that the certified copies were obtained by the petitioner only on 4.9.2000 and the Deputy

Commissioner HR & CE has taken much time to go through the papers and thereafter it has been given to the Government Pleader, thereby it had

caused 275 days delay. The very long period for obtaining the certified copies is not only due to the default of the petitioner but it is also due to the

misplacement of records by the lower Court. Therefore, the plaintiff being the deity equitable to a ''minor'' in law cannot be penalised for the

mistake committed by the Court also. In such circumstances, it has become necessary for this Court to interfere with the order passed by the lower

Court and to set aside the order of dismissing the petition for condonation of delay. Under such circumstances, I have no hesitation to pass an

order, permitting the petitioner to file the appeal after condoning the delay of 275 days. However, the inconvenience caused to the respondent

should have been compensated by way of payment of cost.

Accordingly, the delay in filing the appeal is condoned on condition the petitioner pays a sum of Rs. 1,000/- to the respondent on or before

03.08.2009.

For compliance post the case on 04.08.2009.