Madras High Court
Lakshmi vs P.Sakthivel on 23 April, 2021
C.R.P.No.3352 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.04.2021
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
C.R.P.No.3352 of 2018
1.Lakshmi
2.Balasubramaniam
3.Janaki
4.Devaki
5.Mayilsami
6.Sakunthala ... Petitioners
Vs
P.Sakthivel ... Respondent
Prayer: Civil Revision Petition filed under Section 115 of CPC, against the
fair and decreetal order in I.A.No.616 of 2017 in ASCFR No.11203 of 2017
on the file of Principal District and Sessions Court at Thiruppur.
For Petitioners : Mr.R.Mubarak Basha
for M/s.Hema Sampath Senior counsel
For Respondent : Mr.S.Saravanan
**********
1/6
https://www.mhc.tn.gov.in/judis/
C.R.P.No.3352 of 2018
ORDER
This Civil Revision Petition is filed against the fair and decreetal
order in I.A.No.616 of 2017 in ASCFR No.11203 of 2017 on the file of
Principal District and Sessions Court at Thiruppur, thereby dismissing the
petition to condone the delay in filing appeal suit.
2. The petitioners are the defendants in the suit. The respondent filed
a suit for declaration and injunction in respect of the suit property. After
contesting the suit, the suit was decreed as prayed for. Aggrieved by the
same, the petitioners preferred first appeal with the delay of 1633 days in
filing the appeal suit.
3. On a perusal of the affidavit filed in support of the condone delay
petition, it revealed that though there are six defendants in the suit, except
the second petitioner herein others have not looked after the suit and all the
other defendants assigned the second petitioner herein to contest the suit.
Further revealed that, even on 18.11.2009 all the properties and including
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C.R.P.No.3352 of 2018
the suit properties are partitioned between the petitioners and as such no one
looking after the suit and the second petitioner alone is looking after the
suit.
4. Further, from 02.02.2013 onwards the second petitioner suffered
from jaundice and as such he could not able to contact his counsel to know
what happened the suit itself. Due to jaundice, he taken treatment on
various places and finally he was treated with the native treatment.
Because, he had called for his native treatment, he had no information about
the Judgment of the suit. Only, on 15.12.2017 he came to understand about
the Judgment that too decreed in favour of the respondent. Immediately, he
instructed his counsel applied for certified copy of the Judgment to file an
appeal suit. Therefore, there is a delay of 1633 days in filing the appeal suit.
The cause for the delay is bonafide one. However, the Court below
dismissed the petition to condone the delay for the reason that the petitioner
did not state any sufficient cause for the delay of 1633 days.
5. The learned Senior counsel appearing for the petitioner submitted
that the suit property along with other properties already partitioned
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C.R.P.No.3352 of 2018
between the second petitioner along with other petitioners and as such
except the second petitioner no one is thereto looked after the case. The
second petitioner suffered with jaundice and as such he could not be able to
file the petition in time. Already the suit was decreed in favour of the
respondent and he is enjoying the fruit of the decree. Therefore, no
prejudice would be caused if the condone delay petition is allowed and the
petitioner may be given one more opportunity to defend the suit filed by the
respondent in the appeal, since the appeal suit is nothing but continuation of
the suit proceedings.
6. Per contra, the learned counsel for the respondent would submit
that the huge delay of 1633 days is not at all properly explained by the
petitioners. There is absolutely no sufficient cause to condone the delay of
1633 days. He further submitted that Doctor Certificate produced by the
petitioners is nothing but concocted one, since his own cousin brother who
is the Doctor who issued certificate. Therefore, he prayed for dismissal of
the Civil Revision Petition.
7. As stated supra, except the second petitioner no one is looking after
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C.R.P.No.3352 of 2018
the suit. The second petitioner also suffered with jaundice and he had taken
native treatments on various places. Therefore, he could not able to contact
his counsel and also he did not know the result of the suit. Though there is
inordinate delay of 1633 days in filing the appeal suit, the respondent is
enjoying the fruit of the decree and the petitioners may be given one more
opportunity to defend the suit filed by the respondent by way of appeal suit.
8. Accordingly, this Civil Revision Petition is allowed. The Order
passed in I.A.No.616 of 2017 in ASCFR No.11203 of 2017 dated
28.03.2018 on the file of the Principal District and Sessions Court, Tiruppur
is set aside. The petitioners are directed to pay a sum of Rs.10,000/-
(Rupees Ten Thousand only) as costs to the respondent directly within the
period of two weeks from the date of receipt of a copy of this order. Failing
which the order passed by this Court shall automatically stand cancelled.
On such deposit, the Appellate Court is directed to number the appeal and
dispose the same within the period of six months thereafter. No order as to
costs.
23.04.2021
Internet:Yes
Index:Yes/No
https://www.mhc.tn.gov.in/judis/
C.R.P.No.3352 of 2018
Speaking/Non speaking order
rna
G.K.ILANTHIRAIYAN. J,
rna
To
The Principal District and Sessions Court,
Thiruppur.
C.R.P.No.3352 of 2018
23.04.2021
https://www.mhc.tn.gov.in/judis/
