Madras High Court
B.M.Sanjeevi vs Unnamalai Ammal on 9 November, 2022
CRP.No.2872 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.11.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
CRP.No.2872 of 2022
B.M.Sanjeevi ... Petitioner
Vs.
1.Unnamalai Ammal
2.Venuammal ... Respondents
Prayer: Civil Revision Petition filed under Section 115 of CPC, to set aside
the fair and decreetal order dated 20.04.2022 passed in I.A.No.106 of 2014 in
Un As. (O.S.No.99 of 2010) the learned Subordinate Judge, Tiruttani and allow
the Civil Revision Petition.
For Petitioner : Mr.L.Dhamodharan
1/10
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CRP.No.2872 of 2022
ORDER
This Civil Revision Petition is filed, challenging the order passed
by the Court below dismissing the petition to condone the delay of 813 days in
filing the appeal.
2. The petitioner herein filed a suit for declaration and injunction
against the respondents in O.S.No.99 of 2010 on the file of the District Munsif
Court, Pallipattu and the said suit was dismissed on 27.02.2012. Aggrieved by
the said judgment and decree, the petitioner filed an appeal before the
Subordinate Court, Tiruttani, with a delay of 813 days. In the affidavit filed in
support of petition to condone the delay of 813 days, the petitioner had averred
that he was working as a Junior Clerk, Tiruvalangadu Sugar Mills, Divisional
Office, Athimanjeripatti. Due to his heavy work load in office and his family
problem, he was affected with jaundice for the past two years. It was also
averred by him that he had taken native treatment at Walajapet for nearly 1½
years. Since there was no improvement, he proceeded to Triplicane and he had
taken native treatment for six months. Even then there was no improvement
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CRP.No.2872 of 2022
and hence, he returned to walajapet and continued his native treatment there. It
was further averred that after recovering from illness of jaundice, he had
contacted his counsel and enquired about the stage of the case and then only he
acquired the knowledge about the dismissal of the suit and immediately, he had
filed the appeal with the delay of 813 days.
3. The petition filed by the revision petitioner was seriously
opposed by the respondents by filing their counter. The respondents in their
counter affidavit has stated that the averments in the affidavit of the petitioner
that he was suffering with jaundice for a period of 2 years was unbelievable. It
was also specifically averred by the respondents that the petitioner was
regularly attending his work at Sugar Mills, Tiruvalangadu. The respondents
also averred that the petitioner was not ailing but healthy at the relevant point
of time.
4. Before the Court below, neither the petitioner nor the
respondents examined any witnesses. The respondents herein filed attendance
register of the petitioner, which was maintained by the employer of the
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CRP.No.2872 of 2022
petitioner, namely, Tiruttani Co-operative Sugar Mills Limited, for the period
from January 2012 to December 2014.
5. The Court below based on the attendance register filed by the
respondents came to the conclusion that the petitioner had been regularly
attending his office at the relevant point of time and consequently discarded the
claim of serious illness and dismissed the petition seeking condonation of
delay. Aggrieved by the said order, the petitioner has come before this Court by
way of this revision.
6. The learned counsel for the petitioner contended that he was
prevented from filing the appeal in time due to the illness as averred by him in
his affidavit. The learned counsel for the petitioner further submitted that while
considering the delay petition filed under Section 5 of the Limitation Act, the
Court has to take liberal approach because dismissal of the condonation of
delay petition will result in rejection of the substantial rights of the parties.
7. The learned counsel for the petitioner relied on the decisions in
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CRP.No.2872 of 2022
N.Balakrishnan Vs. M.Krishnamurthy, reported in 1998 (7) SCC 123 and
Ram Nath Sao @ Ram Nath Sahu and others, Vs. Gobardhan Sao &
Others, reported in 2002 (1) CTC 769, in support of his contentions.
8. The petitioner herein in his affidavit filed in support of the
condone delay petition had explained that the delay of 813 days was mainly
due to the fact he was affected by jaundice and consequently, he could not
present the appeal in time. The judgment in the original suit was delivered on
27.02.2012. The certified copy of the judgment produced in the typed set of
papers would suggest that the copies were made ready on 22.06.2012. The
appeal appeared to have been filed during October 2014. The petitioner in his
affidavit averred that he was suffering from jaundice nearly for a period of 2½
years. The reason assigned by the petitioner in explaining the delay nearly for a
period of 2 ½ years is not acceptable to this Court.
9. The petitioner failed to appear before the Court and give any evidence
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CRP.No.2872 of 2022
in support of his contention or examined any witnesses to explain the delay.
When he stated that he had taken native treatment, he could have proved the
same by examining any witnesses or producing the certificate from the native
Doctor.
10. In the absence of any oral and documentary evidence in
support of the contention of the petitioner, this Court is unable to accept that
due to jaundice, the petitioner has filed the appeal with a delay of nearly 2 ½
years.
11. Before the Court below, the respondents produced the
attendance register maintained by the employer of the petitioner as Ex.R1. The
perusal of the same would suggest that the petitioner had been attending his
office regularly from January 2012 to December 2014. Therefore, it is clear
that the averments made by the petitioner that he was affected with jaundice
and he had taken treatment at Walajapet for a period of 2 ½ years and in
Triplicane nearly for a period of six months all are falsified by the documentary
evidence produced by the respondents.
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CRP.No.2872 of 2022
12. It is true that the Court should take liberal approach while
considering the condone delay petition filed under Section 5 of the Limitation
Act. It is also true that when there is a conflict between the procedural law and
substantial rights of the parties, later shall prevail. But however, the delay is
more than 2 ½ years in filing the first appeal. When the petitioner was in a
position to attend the office work regularly, he cannot say that he was
prevented from filing the appeal due to his illness. A person, who comes with
clean hands can request the Court to exercise its discretion.
13. In the case on hand, the petitioner has not approached the
Court with clean hands. In the absence of any oral and documentary evidence
in support of the stands taken by the revision petitioner, the Court below rightly
had taken into consideration the attendance register produced by the
respondents, which was maintained by the employer of the petitioner, came to
the conclusion that the delay was not properly explained. Even otherwise, the
petitioner failed to prove his averments in the affidavit by leading any oral and
documentary evidence independently. Viewing from any angle, I do not find
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CRP.No.2872 of 2022
any illegality or irregularity in the order passed by the Court below.
14. Accordingly, this Civil Revision Petition is dismissed. No
costs.
09.11.2022
Index : Yes / No
Internet : Yes / No
dna
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CRP.No.2872 of 2022
To
1.The Subordinate Judge, Tiruttani.
2.The District Munsif Court, Pallipattu.
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CRP.No.2872 of 2022
S.SOUNTHAR , J.
Dna
CRP.No.2872 of 2022
09.11.2022
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CRP.No.2872 of 2022
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