Madras High Court
Kulasekaran vs The Secretary on 21 March, 2022
C.R.P(NPD)No.1132 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
C.R.P(NPD).Nos.1132 of 2017
and
CMP.No.5443 of 2017
Kulasekaran ..Petitioner
Vs.
The Secretary,
Tiruchengode Co-operative Housing Society Ltd.,
Door No.2/2A, Velur Road,
Tiruchengode Town and Taluk,
Namakkal District. ..Respondent
Prayer: Civil Revision Petition filed under Section 115 of C.P.C., against the
fair and decreetal order of the Sub-ordinate Court, Tiruchengode dated
22.11.2016 in I.A.No.63 of 2013 in A.S.No.77 of 2008.
For Petitioner : Mr.P.Valliappan
For Respondent : Mr.S.Kesavan
ORDER
This Civil Revision Petition has been filed, questioning the order
in I.A.No.63 of 2013 in A.S.No.77 of 2008, which Interlocutory Application
had been dismissed by order dated 22.11.2016.
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C.R.P(NPD)No.1132 of 2017
2.The plaintiff in O.S.No.415 of 1992, aggrieved by dismissal of
the suit by judgment and decree dated 31.01.2006, which suit was on the file
of the District Munsif Court, Tiruchengode, had filed an appeal in
A.S.No.77 of 2008, which appeal was on the file of the Sub-Court at
Tiruchengode. The said appeal did not proceed in its normal course. It was
dismissed for default. Thereafter, an application was filed to restore the
appeal. That particular application was returned for some defects. The
petition was thereafter, represented namely, application to restore the appeal
was represented with the delay of 1166 days. Application seeking to
condone the delay of 1166 days was I.A.No.63 of 2013. Among the reasons
given for the delay in representation was that the papers had been mingled
in the Office of the Advocate with other records. A counter had been filed
putting that particular reason to strict proof.
3.The learned Sub-judge, who must have been quite frustrated on
the application filed to represent an application, which application was filed
to restore an appeal, which appeal had been dismissed for non-prosecution
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C.R.P(NPD)No.1132 of 2017
had naturally thought that it will only be a interest of justice that the reasons
for delay given namely, the papers had been mixed up with other bundles
cannot actually be accepted by the Court. That is a reason, which can
neither be proved nor be disproved. It is a reason which can only be stated
on oath. It can be believed or disbelieved. The learned Sub-Judge
therefore, went along and dismissed the application stating that each days
delay of the 1166 days had not been explained. It naturally meant that the
learned Sub-judge expected the affidavit to disclose the date on which, the
papers were actually mingled with the other bundles, the date on which such
mix up of records were detected and when the papers were actually found
out. This again is a fact which can never be stated because the date on
which the records got mixed with the other case records in the Office of a
Advocate, if it had been known then, the papers would have been restored
back to the original files immediately. Since it had happened owing to
inadvertence, those dates can never be stated in affidavit or even be stated
during the course of oral evidence. The only saving grace for the revision
petitioner is that the affidavit in I.A.No.63 of 2013, had been filed by the
Advocate himself.
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C.R.P(NPD)No.1132 of 2017
4.Therefore, to a little extent, statements made on oath by the
learned counsel, who realises the seriousness of the profession and the
dignity of the profession, can be taken on their face value. Let me take that
particular stand and set aside the order in I.A.No.63 of 2013.
5.The learned Sub-judge had relied on a judgment reported in
2013 (6) MLJ 219 in Muniyan Vs. Eromia and another, which was an
application for restoration of an appeal. A delay in representation is
primarily an issue between the Registry and the Advocate, who had filed the
application. The Registry had returned the papers for compliances and in
representing the same, there has been a delay. It cannot be equated with an
application filed with delay in filing an appeal, which invites strict
interpretation of application of Section 5 of the Limitatiton Act.
6.In view of the aforesaid reasons, I would allow C.R.P.No.1132
of 2017 and set aside the order in I.A.No.63 of 2013 dated 22.11.2016 and
condone the delay of 1166 days in representing the application to restore
A.S.No.77 of 2008. That particular application to restore A.S.No.77 of
2008 may now be considered by the Registry and if it is otherwise in order,
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C.R.P(NPD)No.1132 of 2017
numbered by the Registry and taken up for consideration by the learned
Sub-Judge, Tiruchengode.
7.With the above observations, this Civil Revison Petition is
allowed. No costs. Consequently, connected miscellaneous petition is
closed.
8.Even though this Court had allowed the order in I.A.No.63 of
2013, which application had been filed to represent an application to restore
the appeal in A.S.No.77 of 2008, whenever such application for restoration
comes up for consideration before the Sub-judge, Tiruchengode and if the
learned Sub-judge is of the opinon that A.S.No.77 of 2008 can be restored
then, the said order should also include imposition of costs on the appellant
/ plaintiff, since the suit had been filed in the year 1992 and the appeal filed
in the year 2008, which appeal is now to be heard in the year 2022.
Therefore, the learned Sub-Judge may impose appropriate costs at that
particular stage.
21.03.2022
kkn
Index:Yes/No
Internet:Yes/No
https://www.mhc.tn.gov.in/judis
C.R.P(NPD)No.1132 of 2017
Speaking/Non-speaking order
C.V.KARTHIKEYAN, J.
KKN
To:-
The Sub-Court,
Tiruchengode.
C.R.P(NPD).Nos.1132 of 2017
and
CMP.No.5443 of 2017
21.03.2022
https://www.mhc.tn.gov.in/judis
