P.Kuppusamy vs Udayakumar
2021 Latest Caselaw 22504 Mad

                                                                            C.R.P.(NPD)No.3255 of 2014

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED: 17.11.2021

                                                           CORAM:

                                   THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                                                 C.R.P.(NPD)No.3255 of 2014
                                                    and M.P.No.1 of 2014
                     P.Kuppusamy                                                      .. Petitioner
                                                                  Vs.

                     Udayakumar                                                      .. Respondent

                     PRAYER: Civil Revision Petition filed under Section 115 of the Civil
                     Procedure Code, against the fair and decretal order dated 29.04.2014
                     made in I.A.No.84 of 2013 in unnumbered A.S. on the file of the
                     Principal District Court, Salem.

                                              For Petitioner     : Mr.B.Gopalakrishnan Gopi
                                                                 for Mr.B.Kumarasamy
                                              For Respondent     : Not ready in notice

                                                            ORDER

(The matter is heard through “Video-conferencing/ Hybrid mode”)

Civil Revision Petition is filed against the fair and decretal order

dated 29.04.2014 made in I.A.No.84 of 2013 in unnumbered A.S. on the

https://www.mhc.tn.gov.in/judis C.R.P.(NPD)No.3255 of 2014

file of the Principal District Court, Salem.

2.The petitioner is plaintiff and respondent is the defendant in

O.S.No.42 of 2008 on the file of the Sub Court, Salem. The petitioner

filed the said suit for specific performance of agreement of sale and for

other reliefs, against the respondent. After contest, the said suit was

decreed by the judgment and decree dated 29.02.2012. The respondent

filed appeal challenging the said judgment and decree passed in the suit.

Along with the appeal, the respondent filed I.A.No.84 of 2013 to

condone the delay of 73 days in filing the appeal. The affidavit filed in

support of the said application was sworn by the counsel for the

respondent.

3.According to the respondent, the case bundle got mingled with

other bundles in his office, hence the appeal was not filed in time and the

delay of 73 days in filing the appeal has been occurred.

4.The petitioner filed counter affidavit, opposed the said

https://www.mhc.tn.gov.in/judis C.R.P.(NPD)No.3255 of 2014

application and stated that the respondent has not filed any affidavit and

affidavit filed by the counsel for the respondent is non-est in law. The

petitioner has further stated that for applying copy of the judgment itself,

there was a delay. Even after copies of judgment were ready, the same

was received by the respondent after delay and prayed for dismissal of

the said I.A.

5.The learned Judge considering the materials placed before him,

the nature of relief sought for in the suit, the reasons given by the counsel

for the respondent and the delay is only 73 days, allowed I.A. on payment

of cost of Rs.200/-.

6.Against the said order dated 29.04.2014 made in I.A.No.84 of

2013 in unnumbered A.S., the petitioner has come out with the present

Civil Revision Petition.

7.Heard the learned counsel appearing for the petitioner and

https://www.mhc.tn.gov.in/judis C.R.P.(NPD)No.3255 of 2014

perused the entire materials on record.

8.From the materials on record, it is seen that the petitioner

opposed the application to condone the delay of 73 days in filing the

appeal on the ground that the respondent has not filed any affidavit in

support of the above application and has not given any reason for not

filing affidavit by the respondent. Further, affidavit filed by the counsel

for the respondent in support of the above application is non-est in law

and number of delay mentioned in the application is not correct. From the

affidavit filed in support of the above I.A., it is seen that the counsel for

the respondent has filed affidavit. According to the counsel for the

respondent, the delay has occurred as the First Appeal papers got

mingled with other bundles in his office. The practice of the Advocate or

clerk filing affidavit in support of the application is deprecated by the

Courts in number of cases. Generally, a party must file affidavit in

support of the application. In the present case, the delay has been

occurred only due to mistake of the Advocate as the appeal papers got

https://www.mhc.tn.gov.in/judis C.R.P.(NPD)No.3255 of 2014

mingled with other bundles in the Advocate office. The best person to

speak about such a mistake is only the Advocate, who is responsible for

the delay. In view of the same, affidavit filed by the Advocate is proper in

the facts and circumstances of the case. Further, the delay in filing the

appeal is only 73 days. The learned Judge considering the nature of the

relief sought for in the suit and the reasons given by the respondent,

condoned the delay. There is no error or irregularity in the order of the

learned Judge warranting interference by this Court.

9.For the above reasons, the Civil Revision Petition stands

dismissed. No costs. Consequently, connected Miscellaneous Petition is

closed.

17.11.2021

Index : Yes/No Internet: Yes/No kj

V.M.VELUMANI,J.

https://www.mhc.tn.gov.in/judis C.R.P.(NPD)No.3255 of 2014

Kj

To

The Principal District Judge Salem.

C.R.P.(NPD)No.3255 of 2014 and M.P.No.1 of 2014

17.11.2021

https://www.mhc.tn.gov.in/judis