Madras High Court
Muthukrishnan vs S.Murugesan on 10 December, 2021
C.R.P.(NPD) (MD) No.1454 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10.12.2021
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(NPD) (MD) No.1454 of 2021
Muthukrishnan .. Petitioner/Petitioner/
Appellant
-vs-
S.Murugesan .. Respondent/Respondent/
Respondent
Prayer :- Petition filed under Section 115 of Civil Procedure Code to set
aside the fair and decretal order dated 13.08.2021 passed in I.A.No.2 of
2021 in unnumbered A.S.No.---- of 2021 on the file of the Principal Sub-
Court, Tirunelveli.
For Petitioner : Mr.V.Meenakshisundaram
For Respondent : Mr.T.Selvam
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C.R.P.(NPD) (MD) No.1454 of 2021
ORDER
This revision is filed by the appellant/plaintiff challenging the
order dated 13.08.2021 passed in I.A.No.2 of 2021 in unnumbered
A.S.No.---- of 2021 on the file of the learned Principal Sub Judge,
Tirunelveli, in and by which, the application filed by the petitioner to
condone the delay of 818 days in filing the first appeal was dismissed.
2.The petitioner herein had filed the suit in O.S.No.48 of 2014 on
the file of the learned Additional District Munsif, Tirunelveli, for a
declaration that the suit II Item of property belonged exclusively to him
and therefore, restrain the defendant from interfering with his peaceful
possession and enjoyment of the same and for a mandatory injunction
directing the defendant to remove the encroachments put up on the II
Item of property and to handover possession of the same.
3.For the sake of convenience, the parties shall be referred to as
per their rank in the suit in O.S.No.48 of 2014.
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C.R.P.(NPD) (MD) No.1454 of 2021
4.The said suit was dismissed on 26.03.2018. Thereafter, the
plaintiff had filed the first appeal albeit with a delay of 818 days.
Therefore, he had filed an application to condone the said delay. In the
affidavit filed in support of the same, he would submit that he was unwell
and under native treatment. Further, he was not kept informed about the
suit or its dismissal. He would submit that he had recovered from his
illness in the month of May 2020 and had immediately taken steps to file
the appeal.
5.The respondent had filed a counter inter alia contending that the
reasons given in the affidavit filed in support of the application are
absolutely false and further, as soon as the judgment was passed, the
defendant has lodged a caveat and therefore, the petitioner had
knowledge about the same.
6.The learned Principal Subordinate Judge, Tirunelveli, proceeded
to dismiss the said application on the ground that sufficient cause has not
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C.R.P.(NPD) (MD) No.1454 of 2021
been shown. Aggrieved by the same, the petitioner/appellant/plaintiff is
before this Court.
7.Heard the learned counsel on both sides.
8.The appellant is the plaintiff and the plaintiff has filed the suit
for a mandatory injunction and for recovery of possession and the suit
has been dismissed. The reasons given by the appellant though not
adequate, however, provides a reason for the delay. It has been time and
again held both by the Hon'ble Supreme Court as well as this Court that a
liberal approach be taken while dealing with an application for
condoning the delay. Unless the delay has been deliberately caused with
malafide intentions, the litigant should not be nonsuited on the ground of
delay. Therefore, this Court is of the view that the said application may
be allowed on costs.
9.Accordingly, this Civil Revision Petition is allowed, the order
dated 13.08.2021 passed by the learned Principal Sub Judge, Tirunelveli,
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C.R.P.(NPD) (MD) No.1454 of 2021
in I.A.No.2 of 2021 in unnumbered A.S.No.---- of 2021 is set aside and
the delay of 818 days in filing the first appeal is condoned on condition
that the petitioner pays a sum of Rs.5,000/- (Rupees Five Thousand only)
to the learned counsel for the respondent on or before 23.12.2021.
10.Post the matter for 'reporting compliance' on 04.01.2022.
10.12.2021
Note to Registry: Issue copy on 16.12.2021.
abr
Note:-
In view of the present lock down owing
to COVID-19 pandemic, a web copy of
the order may be utilized for official
purposes, but, ensuring that the copy of
the order that is presented is the correct
copy, shall be the responsibility of the
Advocate / litigant concerned.
To
The Principal Sub Court, Tirunelveli.
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C.R.P.(NPD) (MD) No.1454 of 2021
P.T.ASHA, J.
abr
C.R.P.(NPD) (MD) No.1454 of 2021
Dated: 10.12.2021
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