Madras High Court
Sudalaimuthu vs V.Mahalinga Boobathi on 10 August, 2023
C.R.P.(MD).No.407 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 10.08.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
C.R.P.(MD)No.407 of 2017
and
C.M.P(MD) No.2038 of 2017
1. Sudalaimuthu
Ramaiah (died)
2. Sornam
3. Esakkimuthu
4. Chandra
5. Mariappan
6. Petchiammal
7. Mariammal
8. Sudalaimani ... Petitioners/Petitioners
-vs-
1. V.Mahalinga Boobathi
2. Mandirakonar ... Respondents/Respondents
nd
(2 respondent Mandira Konar called absent
set Exparte in both the Trial Court as well as
Appellate Court. Hence, notice to 2nd respondent
may be dispensed with)
PRAYER: Civil Revision Petition is filed under Section 115 of Civil
Procedure Code, as against the fair and decreetal order dated 07.12.2016
passed in I.A.No.13 of 2013 in Unregistered Appeal Suit on the file of the
Principal Sub Court, Tirunelveli.
1/6
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.407 of 2017
For Petitioners : Mr.S.P.Maharajan
For Respondents : No appearance
ORDER
The present Civil Revision Petition has been filed against the
dismissal order passed by the Court below in an application filed for the
condonation of 328 days delay in filing the connected appeal.
2. Notice served upon the first respondent herein as affixed, and as
against the second respondent, since he was set exparte before the Court
below, the petitioner herein has given up the case against him.
3. Despite the name of the first respondent is printed in the cause
list, no one appeared on behalf of him.
4. The learned counsel for the petitioners would submit that the
petitioners herein are the aged persons and they are also having impairment in
the eyesight and are also suffering from hard of hearing. It is also the further
submission of the learned counsel for the petitioners that the first
petitioner/2nd defendant had fell during the year 2012. Therefore there is a
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C.R.P.(MD).No.407 of 2017
delay of 328 days in filing the connected appeal. Hence, he prayed to allow
this petition.
5. The application was resisted by the respondent on the ground
that the petitioners have falsely filed the affidavit and the reasons stated in the
affidavit cannot be believed. The Court below, on considering either side, has
disbelieved the case of the petitioners and ultimately, dismissed the
application, with a finding that there was an enormous delay of 328 days and
that there was no sufficient cause.
6. The learned counsel for the petitioners would vehemently submit
that the very age of the first petitioner is more than 75 years, and they have
ailments, such as, impairment of eye sight and hard of hearing, and in
addition to that the first petitioner/2nd defendant had a fell. Therefore, they
have got a sufficient cause to condone the delay based upon the above
ground.
7. It is also the further submission of the learned counsel for the
petitioners that, the counsel appearing before the Court below has caused
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C.R.P.(MD).No.407 of 2017
delay in getting the certified copy and the counsel had also not properly
guided the petitioners, that is why, the petitioners have engaged another
counsel and in the meanwhile, there was a delay of 328 days.
8. However, the Court below dismissed the application. It is settled
principle of law that, whenever an application is filed for condonation of
delay, in filing the application, the Court must be liberal. It is useful to refer
the judgment of this Court in C.R.P(MD) No.2774 of 2010 (NPD)
(P.Arumugam Vs.S.P.Kuzhanthivel). Paragraph No.8 is as follows:
“8. I have heard the rival submissions. The
Honourable Supreme Court and this Court have
been repeatedly pointing out that the Courts should
adopt liberal approach in matters of delay,
particularly the delay in filing the appeal. Unless
the delay is shown to be mala fide and the person
causing delay had obtained certain advantage
because of the delay, the Courts in normal course
should condone the delay. In University of Delhi
Vs Union of India and others reported in 2019
SCC online 2634, had held that the Court should
be liberal in condonation of delay. The lower
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C.R.P.(MD).No.407 of 2017
Appellate Court had held that the petitioner has
not satisfactorily explained the delay of 1093 days.
The facts narrated above would show that a large
part of the delay is due to the delay on the part of
the Court in rectifying the errors that had crept in
the decree. The appellate Court has not adverted to
this vital aspect.”
9. Therefore, considering the age of the first petitioner, this Court is of
the view that there is sufficient cause for condonation of delay.
10. In the result, this Civil Revision Petition is allowed. There shall be
no order as to costs. Consequently connected Miscellaneous Petition is
closed.
10.08.2023
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
ebsi
To
1. The Principal Sub Court,
Tirunelveli.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.407 of 2017
C.KUMARAPPAN,J.
ebsi
C.R.P(MD)No.407 of 2017
10.08.2023
https://www.mhc.tn.gov.in/judis
