BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 13/12/2010 CORAM THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN C.R.P.(NPD)(MD)No.2133 of 2010 Abdul Ajees ... Petitioner Vs. 1.S.Venkatasamy Naicker 2.Sri Rengammal 3.Seenivasan ... Respondents Prayer Civil Revision Petition is filed under section 115 of the Code of Civil Procedure praying to set aside the fair and decretal order dated 09.06.2010 passed in I.A.No.29 of 2010 in unnumbered A.S. on the file of the learned Subordinate Judge, Kovilpatti. !For Petitioner ... Mr.S.Pon Senthil Kumaran ^For Respondent No.1 ... Mr.M.Thirunavukkarasu ******** :ORDER
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INTRODUCTORY:
This Civil Revision Petition is directed against the order dated
09.06.2010 in I.A.No.29 of 2010 in unmbered A.S. on the file of the learned
Subordinate Judge, Kovilpatti, whereby and whereunder, the application filed by
the petitioner to condone the delay of 613 days in preferring the first appeal
was dismissed.
FACTUAL MATRIX:
2. The petitioner filed a suit in O.S.No.136 of 2003 before the
learned District Munsif, Kovilpatti against the respondents, praying for a
judgment and decree of declaration and consequential injunction in respect of
the suit property. The said suit, on contest, was dismissed as per judgment and
decree dated 29.04.2008. The petitioner has not filed an appeal within the
stipulated period. Subsequently, he filed an appeal before the learned
Subordinate Judge, Kovilpatti with an application to condone the delay of 613
days. The said application was registered as I.A.No.29 of 2010.
3. The petitioner, in his affidavit filed in support of the
application to condone the delay, submitted that the delay has happened on
account of his illness and accordingly, prayed for condoning the delay. The
petitioner has also produced a certificate issued by a medical officer to
substantiate his contention that he was actually laid up.
4. The application was opposed by the respondents by filing counter.
According to the respondents, they have already initiated criminal proceedings
against the petitioner and the matter has come up for trial and it was only at
that point of time, he has filed the appeal with an application to condone the
delay and it was made only with an intention to show that the dismissal of the
suit has not become final.
THE JUDGE’S VIEW:
5. The learned appellate Judge found that the delay was not
explained properly. The document stated to have been obtained from a medical
officer was not supported by the prescription issued by the medical officer and
the bills issued for purchasing medicines. Therefore, the learned Appellate
Judge disbelieved the medical certificate as well as the reasons advanced by the
petitioner in support of his case for delay. The learned Appellate Judge opined
that the petitioner has fabricated documents to appear as if he was laid up
during the period in question and that was the reason for the delay in
preferring the appeal.
SUBMISSIONS ON THIS REVISION:
6. The learned counsel appearing for the petitioner contended that
the petitioner was laid up on account of his heart disease and the said fact is
borne out by the certificate issued by the Consulting Physician, attached to
Ponmalligai Hospital Private Limited, Chennai. The learned counsel further
contended that the son-in-law of the petitioner died on 24.11.2008 and it was
followed by the death of his brother on 12.01.2009. Therefore, he was having
sufficient cause for the delay in filing the appeal.
7. The learned counsel appearing for the first respondent submitted
that though the petitioner has stated that he has undergone surgery, not even a
single document was produced to substantiate the said contention. It was the
further contention of the learned counsel that a case in C.C.No.200 of 2009 was
pending against the petitioner before the learned Magistrate for forgery and it
was only to make out a case that the issue in respect of fabrication of the
document was live that he has filed the appeal with an application to condone
the delay. According to the learned counsel, there is no bona fides in the
contention raised by the petitioner and the application was rightly rejected by
the learned Appellate Judge.
ANALYSIS:
8. The suit in O.S.No.136 of 2003 filed by the petitioner for
declaration and injunction was dismissed by the learned District Munsif,
Kovilpatti on 29.04.2008. The petitioner has not preferred any appeal within the
stipulated period before the appellate Court. He has filed the application only
on 01.02.2010. In support of his application, the petitioner has produced a
document dated 18.01.2010 issued by the Consulting Physician of Ponmalligai
Hospital Private Limited, Chennai. The certificate was marked before the lower
Court. The certificate proceeds as if the petitioner was under the treatment of
the said Physician for the period from December, 2008 to April, 2009. However,
the period prescribed for filing the appeal got expired even before the
treatment period. The other reason given by the petitioner pertains to the death
of his son-in-law and brother on 24.11.2008 and 12.01.2009 respectively.
However, it is a matter of record that the very appeal was preferred only on
01.02.2010.
9. The petitioner, in his affidavit filed in support of the
application, contended that he has undergone surgery and as such, he was not in
a position to take steps for filing appeal. However, not even a scrap of paper
was produced before the lower Court to show that he was given medicines or to
show the payment made by him for undertaking the treatment or for the surgery.
This only made the learned Appellate Judge to comment on the certificate issued
by the medical officer.
10. It is true that the extent of delay is not material and it is
only the reasons given for the delay that alone are material.
11. While considering an application like this, the background facts
of the case also assumes significance. The respondents, in their counter-
affidavit filed in I.A.No.29 of 2010, clearly stated the motive in filing the
appeal with an application to condone the delay. The respondents have preferred
a complaint against the petitioner alleging forgery. The civil suit was in
respect of the very same subject matter, though it was relating to the property.
The case of forgery came up for consideration before the trial Court. It was
only during the pendency of the trial in C.C.No.200 of 2009, the petitioner has
filed the appeal along with I.A.No.29 of 2010. Therefore, the very timing of
filing application in I.A.No.29 of 2010 clearly shows the real motive in
preferring the appeal at a belated point of time. The petitioner has been
showing reasons one after another in support of his contention that the
circumstances were beyond his control and the same alone contributed for the
delay.
12. The certificate issued by the medical officer dated 18.01.2010
shows that the petitioner was under his treatment upto April, 2009. The
certificate further contains an indication that the petitioner was advised to
continue the treatment lifelong. The certificate was issued only for the
purpose of producing before the Court. This is evident from the fact that the
treatment was for the period upto April, 2009, but the issuance of certificate
was only in January, 2010. Case sheet maintained by the hospital was not
produced. The medical bills and the discharge summary were also not produced.
Therefore, other than the medical certificate issued by the Consulting
Physician, there was no document produced before the Court to justify the
contention raised by the petitioner with respect to the delay. Therefore, the
learned Appellate Judge was perfectly justified in arriving at a conclusion that
there was absolutely no reason for condoning the delay.
13. The Supreme Court in Improvement Trust v. Ujagar Singh reported
in 2010(6) SCC 786, observed that there is no prescribed straitjacket formula to
come to the conclusion as to whether sufficient grounds have been made out for
condoning the delay. However, it was further held that each case has to be
weighed from its facts and the circumstances in which the party acts and
behaves.
14. Therefore, the conduct, behaviour and attitude of the parties
assumes significance in a case like this. The conduct of the petitioner, in the
light of the parallel proceedings initiated against him in C.C.No.200 of 2009
and the time at which, he has chosen to file the first appeal with an
application to condone the delay, clearly shows his intention. The learned
Appellate Judge has rightly considered the issue and arrived at a finding that
the petitioner has not made out a case for condoning the delay. There is no
reason to take a different view in the matter. Therefore, I am inclined to
confirm the order passed by the learned Appellate Judge.
RESULT:
15. In the upshot, I dismiss the Civil Revision Petition. However,
in the facts and circumstances of the case, there will be no order as to costs.
SML
To
The Subordinate Judge,
Kovilpatti.