Madras High Court
R.Karunakaran vs R.Kalavathy on 5 March, 2024
Author: V.Sivagnanam
Bench: V.Sivagnanam
CRP No.549 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.03.2024
CORAM
THE HONOURABLE MR. JUSTICE V.SIVAGNANAM
CRP No.549 of 2024
R.Karunakaran ... Petitioner
Vs.
R.Kalavathy ...Respondent
PRAYER: Civil Revision Petition filed under Article 227 of the
Constitution of India to set aside the order in IA No.1 of 2023 in A.S.Sr
No.10358 of 2023, dated 02.12.2023 passed by the learned Principal Judge,
City Civil Court, Chennai.
For Petitioner : Mr.M.Aravind Subramaniam
Senior Counsel
for Ms.K.Dheepakshi
For Respondent :Mr.S.Nambirajan
1 of 8
https://www.mhc.tn.gov.in/judis
CRP No.549 of 2024
ORDER
The civil revision petition is filed to set aside the order in IA No.1 of
2023 in A.S.Sr No.10358 of 2023, dated 02.12.2023 passed by the learned
Principal Judge, City Civil Court, Chennai
2. The revision petitioner is the appellant and respondent is the
respondent in AS SR No.10358 of 2023 on the file of the Principal Judge,
City Civil Court, Chennai and the revision petitioner is the defendant and
the respondent is the plaintiff in OS No.3880 of 2019 on the file of the XV
Assistant Judge, City Civil Court, Chennai. The suit was filed by the
plaintiff/respondent for recovery of possession. The suit was decreed on
25.08.2022 as prayed for by the respondent. Aggrieved by the said
judgment and decree, the revision petitioner had preferred an appeal and
which was received in SR No.22678 of 2022 but the papers were misplaced.
Subsequently, the revision petitioner has filed an appeal in AS SR
No.10358 of 2023 challenging the judgment and decree in OS No.3880 of
2 of 8
https://www.mhc.tn.gov.in/judis
2019 along with an application in IA No.1 of 2023 to condone the delay of
311 days in filing the appeal, which was dismissed by the learned Judge by
holding as follows:
'In this case, the petitioner/defendant has
simply raised an allegation against the Registry
without any material. Therefore, the court is of the
considered view that the delay was caused due to
the fault of the petitioner and the Registry cannot
be blamed for the same. Since the
petitioner/defendant has not restored the earlier
copy application, the 2nd application is not
maintainable in law. The other reason stated by
the petitioner that he went through an eye surgery
is not considered since the petition itself is not
maintainable and this point is answered
accordingly. "
3. Challenging the order dated 02.12.2023, the petitioner has filed the
present civil revision petition.
4. Learned counsel for the petitioner submits that since the earlier
appeal papers in AS SR No.22678 of 2022 has been misplaced by the
Registry and not able to furnish any proof, the petitioner has filed
3 of 8
https://www.mhc.tn.gov.in/judis
another appeal in AS SR No.10358 of 2023 with a delay of 311 days. Being
the first statutory appeal, he seeks that the delay may be condoned and the
appeal may be permitted to taken on file and allow the Revision.
5. Learned counsel for the respondent objected to the said contention
and further contended that the petitioner though stated in the affidavit that
the earlier AS SR No.22678 of 2022 has been misplaced by Registry but
failed to provide any proof for that allegation. Under these circumstances,
filing another appeal in AS SR No. No.10358 of 2023 is unsustainable
without restoring the earlier appeal. There is no merit in the revision and
hence he seeks for the dismissal of the revision.
6. Heard the learned counsel for the parties and perused the materials
available on record.
7. The revision petitioner is the appellant and respondent is the
respondent in AS SR No.10358 of 2023 on the file of the Principal Judge,
4 of 8
https://www.mhc.tn.gov.in/judis
City Civil Court, Chennai and the revision petitioner is the defendant and
the respondent is the plaintiff in OS No.3880 of 2019 on the file of the XV
Assistant Judge, City Civil Court, Chennai. The suit was filed by the
plaintiff/respondent for recovery of possession. The suit was decreed on
25.08.2022 as prayed for by the respondent. Aggrieved by the judgment
and decree, he preferred an appeal, which was received by the Registry in
AS SR No.22678 of 2022. The petitioner's copy application for getting
judgment and decree was also struck off on 01.12.2022. Under these
circumstances, his earlier appeal papers were misplaced. According to the
petitioner, it was misplaced by the Registry but there is no proof to show
that the Registry has misplaced the papers and there is no complaint
preferred by the petitioner. Anyhow, the papers filed in AS SR No.22678 of
2022 is not available now. Therefore, the petitioner filed another appeal in
AS Sr No. 10358 of 2023 with a delay of 311 days. The appeal is first
statutory appeal. A chance has to be given to the petitioner to place his
grievance and aggrieved over the judgment and decree in OS No.3880 of
2019. One right of appeal has always been accepted, and appropriate steps
5 of 8
https://www.mhc.tn.gov.in/judis
must be taken to effectuate that right. The considerations on account of
delay and limitation ought not to negate the right of appeal. Hence, on
technical ground, the statutory appeal available to the petitioner cannot be
denied. Therefore, the impugned order dated 02.12.2023 is hereby set aside
The delay is condoned and the civil revision petition is allowed. The trial
court is hereby directed to number the appeal, if it is otherwise in order.
There shall be no order as to costs. Consequently, CMP No.2685 of 2024 is
closed.
05.03.2024
Index: Yes/No
Internet: Yes/No
mrn
Issue order copy by 07.03.2024
To
The Principal Judge, City Civil Court, Chennai.
6 of 8
https://www.mhc.tn.gov.in/judis
V.SIVAGNANAM, J.
mrn
7 of 8
https://www.mhc.tn.gov.in/judis
05.03.2024
8 of 8
https://www.mhc.tn.gov.in/judis
