Madras High Court
Boominathan vs Perumal on 26 February, 2021
CRP(MD)No.320 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 26.02.2021
CORAM :
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
CRP(MD)No.320 of 2021
Boominathan ... Petitioner
vs.
Perumal ... Respondent
Petition filed under Article 227 of the Constitution of India, to call
for the records relating to the fair and decreetal order dated 17.04.2018
made in I.A.No.90/2017 in unnumbered A.S. in S.R.No.247/2017 on the
file of the learned Subordinate Judge, Muthukulatur and to set aside the
same.
For Petitioner : Mr.K.C.Ramalingam
For Respondents : Mr.K.Kumaravel
ORDER
Against the dismissal of the condone delay petition in filing the
appeal suit, this revision petition is filed.
2.The revision petitioner as plaintiff filed a suit in O.S.No.15/2011
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CRP(MD)No.320 of 2021
for declaration that the suit property is a public pathway and for
permanent injunction restraining the respondent/defendant to construct
or encroach in the suit property and for mandatory injunction to remove
the encroachment. By judgment and decree dated 07.12.2016, the suit
was partly decreed granting the relief of declaration and in respect of the
relief of permanent injunction and mandatory injunction, the suit was
dismissed, against which, the petitioner filed appeal suit along with the
present I.A.No90/2017 to condone the delay of 320 days in filing the
appeal suit. The Court below declined to condoned the delay, against
which, the petitioner/plaintiff has filed this revision petition.
3.The learned counsel for the petitioner would state that the
learned Judge has failed to consider that the petitioner had handed over
the certified copies of judgment passed in the suit, to his counsel in time
and it was misplaced in the counsel's office and hence, the above delay
occurred, for which, the petitioner should not be penalised. Thus, he
would pray to condone the delay.
4.The learned counsel for the respondent/defendant would state
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CRP(MD)No.320 of 2021
that the learned Judge finding that the reason for the delay has been
stated in a routine manner and there are no specific details, has declined
to condoned the delay. He would further state that the learned Judge has
also found that the petitioner/plaintiff was not diligently prosecuting the
suit and that is the reason why the relief of mandatory injunction and
permanent injunction were not granted. Thus, he would pray for
dismissal of the revision petition.
5.Heard the learned counsel for the petitioner as well as the
respondent.
6.Perusal of record shows that the reasons stated by the petitioner
for the delay of 320 days is that he obtained the certified copies of the
judgment and decree passed in the suit and handed over the same to his
counsel in time and inadvertently, the Advocate put up the same in some
other bundles and therefore the above delay occurred. In support of his
contention that for the fault of the Advocate, he should not be made to
suffer, the petitioner relied on a decision of the Delhi High Court in
Kuldip Singh vs. V.Krishnan Kumar and others reported in AIR 1974
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CRP(MD)No.320 of 2021
Delhi 145, wherein, it has been held that where the appellant handed
over in time the requisite certified copy to the clerk of the counsel but
later in rush of work misplaced it by wrongly putting it in some other
brief and hence the same could not be filed in Court in time, the delay
was condoned. But, the learned Judge did not accept the above reason
holding that no specific details has been given as to the date on which,
the petitioner gave the certified copy of judgment to his counsel.
7.The suit is of the year 2011 and the matter is pending before this
Court from 2018 onwards. Considering the facts and circumstances of
the case and the pendency of the matter before this Court from 2018
onwards, ends of justice would be met by condoning the delay on terms.
Accordingly, the delay of 320 days shall stand condoned subject to
payment of cost of Rs.5,000/- by the petitioner to the respondent within a
period of one week from the date of receipt of a copy of this order. If the
petitioner pays the above cost within the above stipulated time, the
learned Judge is directed to number the appeal and to dispose of the
same within a period of six months from the date of receipt of a copy of
this order. If the petitioner fails to pay the cost, this revision petition
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CRP(MD)No.320 of 2021
shall stand dismissed automatically.
8.With the above direction, this Civil Revision Petition is disposed
of. No costs.
Index : Yes / No
Internet : Yes / No
bala 26.02.2021
https://www.mhc.tn.gov.in/judis/
CRP(MD)No.320 of 2021
J.NISHA BANU, J.
bala
To
The Subordinate Judge,
Muthukulatur.
ORDER MADE IN
CRP(MD)No.320 of 2021
DATED : 26.02.2021
https://www.mhc.tn.gov.in/judis/
