V.S. Chockalingam Pillai vs Kumar and Radha alias Palanirajan

M. Venugopal, J.—The civil revision petitioner/petitioner/appellant has filed this civil revision petition as against the order dated 01.08.2008

in I.A. No. 60 of 2008 in unnumbered A.S. passed by the learned Principal District Judge, Tirunelveli in dismissing the application filed by the

revision petitioner praying to condone the delay of 58 days, u/s 5 of the Limitation Act.

The learned Principal District Judge, Tirunelveli while passing orders in I.A. No. 60 of 2008 in unnumbered A.S. on 01.08.2008 has inter alia

observed that the revision petitioner has not explained the delay of 58 days convincingly and finding no merit and substance in the application has

resultantly dismissed the same without costs.

According to the learned Counsel for the revision petitioner, the learned Principal District Judge, Tirunelveli has committed an error in dismissing

the I.A. No. 60 of 2008 seeking to condone the delay of 58 days in filing the appeal and further that the learned District Judge should have taken

judicial notice of the fact that the revision petitioner is a sickly person on account of his old age of 65 years and that the revision petitioner has filed

a subsequent suit O.S. No. 40 of 2008 on a different cause of action against the respondents herein in regard to putting up of any construction in

the suit schedule property and further since the suit property is a trust property, the interest of the public trust ought to have been taken note of by

the learned Principal District Judge while condoning the delay of 58 days in preferring the appeal and therefore, prays for allowing the civil revision

petition in the interest of justice.

Contending contra, the learned Counsel for the respondents submits that the revision petitioner has filed the subsequent suit O.S. No. 40 of

2008 in the first week of March 2008 and later he filed I.A. No. 60 of 2008 in third week of March 2008 and that the revision petitioner after the

dismissal of the suit O.S. No. 76 of 2005 on the file of the Sub Court, Sankarankoil has initiated another suit O.S. No. 40 of 2008 before the

learned District Munsif, Sivagiri for the same relief and therefore, the reason ascribed by the revision petitioner that he is aged about 69 years, etc.,

cannot be accepted, on any score and moreover there is no substantive proof that the revision petitioner has been suffering from ailment and in the

absence of the same, the trial court is perfectly correct in dismissing the I.A. No. 60 of 2008 and therefore, prays that this Court sitting in revision

need not interfere with the same.

It is pertinent to point out that in I.A. No. 60 of 2008 in unnumbered A.S._ of 2008 the revision petitioner has among other things averred that

he is aged about 69 years and he is a somatic patient and therefore, he has been prevented in meeting his counsel for filing the present appeal and

resultantly, there has been a delay of 58 days in preferring the same and if the delay is not condoned, it will result in hardship and difficulty to the

petitioner and that he has got every chance to succeed in the appeal and therefore, prays for allowing the application.

In the counter filed by the respondents it is inter alia mentioned that it is not correct to state that there has been a delay of 58 days in preferring

the appeal and that for what reason the delay is occasioned for 58 days has not been properly mentioned in the I.A. affidavit filed by the petitioner

and that the petitioner is falling sick and further that he is aged 69 years, all these will have to be proved by the petitioner with proper evidence and

therefore, prays for dismissal of the application.

The term ''sufficient cause has to be liberally interpreted by a court of law and in this regard a pedantic approach should not be made in the

considered opinion of this Court. Generally a party does not stand to benefit by preferring an appeal late. Refusing to condone the delay will

certainly result in a meritorious matter being thrown out at the nascent stage and cause of justice being defeated.

Per contra, the highest thing that can happen is that a cause will be decided on merits, of course, after hearing the parties fully, completely and

comprehensively. Indeed, ''every day''s delay must be explained'' does not mean that a pedantic approach ought to be made. On the other hand,

the doctrine should be applied in a rational and a common sense pragmatic manner. Moreover, there cannot be any presumption that a delay has

occasioned either due to culpable negligence, or on account of mala fides or even by a deliberate act. Suffice it to point out that a party does not

stand to benefit by practising delay. However, he runs a serious risk.

In short, the judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing

injustice and is expected to do so.

In the instance case on hand, there has been a delay of 58 days in filing the appeal. Notwithstanding the fact that the revision petitioner has

mentioned that he is 69 years old and that he is a somatic patient etc., and taking note of the fact that even though the revision petitioner has not

proved the above facts, yet this Court opines that in a processional justice, substantial justice deserves to be preferred over the technical

considerations, inasmuch as the other party cannot claim to have any vested right in injustice being done because of a non deliberate delay and in

that view of the matter, this Court allows the civil revision petition in the interest of justice.

In the result, the civil revision petition is allowed. The order passed by the learned Principal District Judge, Tirunelveli in I.A. No. 60 of 2008 in

unnumbered A.S. is set aside for the reasons assigned by this Court in this revision. However, the civil revision petitioner is directed to pay a sum

of Rs. 1,000/- (Rupees one thousand only) as costs to the respondents'' counsel directly on or before 21.04.2009 failing which the petition will

stand dismissed automatically without any further reference to the petitioner. Having regard to the facts and circumstances of the case, there shall

be no order as to costs.