BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19/01/2011 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P(NPD)(MD)No.1066 of 2004 J.Aeronimuse ..Appellant/Petitioner/ Petitioner vs M.Arulappan ..Respondent/Respondent/ ..Respondent PRAYER Civil Revision Petition filed under Article 115 of Civil Procedure Code against the order and decretal order dated 27.08.2002 made in I.A.No.29 of 2001 in A.S.S.R.No.418 of 1997 on the file of the Principal District Judge, Nagercoil. !For Petitioner ...Mr.K.Sreekumaran Nair ^For Respondent ...Mr.S.C.Herold Singh, Govt.Advocate. :ORDER
The Revision petitioner/Plaintiff has filed the present Civil Revision
Petition as against the order dated 27.08.2002 in I.A.No.29 of 2001 in
A.S.S.R.No.418 of 1997 passed by the learned Principal District Judge,
Nagercoil.
2.The learned Principal District Judge, while passing the orders in
I.A.No.29 of 2001 on 27.08.2002 has among other things observed that since the
I.A.No.28 of 2001 filed for excuse of delay 1322 days has been dismissed, the
present I.A.No.29 of 2001 is also dismissed without costs.
3.The learned Counsel for the Revision Petitioner/plaintiff submits that
the order of the learned Principal District Judge, Nagercoil, in dismissing the
I.A.No.29 of 2001 in A.S.S.R.No.418 of 1997 dated 27.08.2002 is contrary to the
law and the same is vitiated by material irregularity in regard to the exercise
of jurisdiction.
4.It is the contention of the learned Counsel for the Petitioner/Plaintiff
that there is only shortage of 15 days in filing of an Appeal and this aspect
has not been properly appreciated by the learned Principal District Judge,
Nagercoil, while dismissing the I.A.No.29 of 2001 and in any event, the learned
Principal District Judge, Nagercoil, should have allowed the I.A.No.29 of 2001
in the interest of justice.
5.In I.A.No.29 of 2001, the Revision Petitioner/Plaintiff has among other
things averred that ‘the last date of filing of Appeal fell on 20.01.1997, but
the Revision Petitioner has fallen sick and admitted as an inpatient in
J.J.Hospital, Kottar, on 16.01.1997, but he has undergone an operation for a
growth in the middle of the chest and is still continued to be in the Hospital.
Further he has not been in a position to give instructions to his Advocate to
prefer the appeal and there is a casual delay of 15 days.’
6.In the counter filed by the Respondent/Defendant it is mentioned that
I.A.No.29 of 2001 filed by the Revision Petitioner/Plaintiff is not
maintainable, no proper or legal reason is assigned in the affidavit in
I.A.No.29 of 2001 filed by the petitioner and since the I.A.No.29 of 2007 is not
maintainable and the said I.A.No.29 of 2001 is to be dismissed in furtherance of
substantial cause of justice.
7.On going through the order of the learned Principal District Judge,
Nagercoil, in I.A.No.29 of 2001, it is quite evident that the learned Principal
District Judge, Nagercoil, has dismissed, the I.A.No.29 of 2001 on the ground
that he has already dismissed, the I.A.No.28 of 2001 after hearing of both
sides.
8.At this stage, the learned Counsel for the Respondent/Defendant submits
that the learned Principal District Judge, Nagercoil, after dismissing the
I.A.No.28 of 2001 has passed consequential order of dismissing the I.A.No.29 of
2001. Furthermore, the Learned Principal District Judge, Nagercoil, while
dismissing the I.A.No.29 of 2001 has not adverted to the merits of the averments
made by the Revision Petitioner in I.A.No.29 of 2001.
9.It is to be noted that in the affidavit filed by the Revision Petitioner
in I.A.No.29 of 2001 the reason assigned by the Revision Petitioner is different
from the reason assigned in the affidavit filed in I.A.No.28 of 2001.
Consequently, in I.A.No.29 of 2001 the Revision Petitioner/Plaintiff has stated
that he has fallen ill and he has admitted as an inpatient in J.J.Hospital,
Kottar, on 16.01.1997 and he has undergone an operation for a growth in the
middle of the chest and because of the said reason, he has not been in a
position to give instructions to his Counsel to prefer the appeal in time.
10.However, a perusal of the counter filed by the Respondent/Defendant
shows that the factum of Revision Petitioner falling ill and being admitted in
J.J.Hospital,Kottar, on 16.01.1997 has not been denied by the
Respondent/Defendant. The only averment is that I.A.No.29 of 2001 is not
maintainable. Also, it is mentioned that the petition copy served on the
respondent’s side has been undated. Added further, the Respondent/Defendant has
mentioned that no proper or legal reason has been assigned in the affidavit in
I.A.No.29 of 2001.
11. The learned Counsel for the Respondent/Defendant has brought to the
notice of this Court that the Revision Petitioner/Plaintiff in I.A.No.29 of 2001
has averred in paragraph ‘4’ that he has produced herein medical certificate,
but neither the same has been filed in the Court nor the same has been marked as
exhibit in the Court on the side of the Revision Petitioner/Plaintiff and as
such, the Revision Petitioner/Plaintiff has not proved the illness alleged by
him. But at this stage, this Court is of the considered view that though the
petitioner has averred that he has produced the medical certificate and the same
has not been marked as exhibit in I.A.No.29 of 2001 on the side of the
petitioner, yet the fact that the Revision Petitioner has fallen ill and
admitted as an inpatient in J.J.Hospital, Kottar, has not been categorically
denied by the Respondent/Defendant. Even the absence of Medical Certificate
being marked as exhibit on the side of the Revision Petitioner/Plaintiff is not
fatal to the case of the Revision Petitioner/Plaintiff, in the considered
opinion of this Court. It is to be remembered that the Court of law has to
deliver substantial justice between the parties overriding technicalities in
delay condonation application or representation of delay matters. The pedantic
approach or a Court of law and even the length and the breath of delay are not
material or relevant factors. Normally, a litigant does not stand to benefit by
filing an appeal belatedly. On the other hand, he runs a serious risk. If the
condonation of delay or representation of delay is allowed by a Court, then a
litigant will be allowed to take part in the main arena of proceedings so that
his cause can be decided on merits, by the Court, of course, after hearing
both sides on merits. It is to be noted that judiciary is respected not on
account of its power to legalise injustice on technical grounds but it is
capable of removing injustice and it is expected to do so.
12.Be that as it may, since the delay of 15 days mentioned in I.A.No.29 of
2001 filed by the Revision Petitioner is less number of days than the
representation day of 1322 in I.A.No.28 of 2001, this Court on the basis of
Equity, Fair Play, Good Conscience and even as a matter of prudence, directs the
Revision Petitioner to pay a costs of Rs.250/-(Rupees Two Hundred and Fifty
Only) to the learned Counsel for the Respondent/Defendant directly within a
period of ten days from the date of receipt of a copy of this order and subject
to these directions, the Civil Revision Petition is allowed, leaving the parties
to bear their own costs.
gsr
To
The Principal District Judge,
Nagercoil.