IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.06.2010
Coram:
THE HONOURABLE MR.JUSTICE G.RAJASURIA
C.R.P.(PD).No.1056 of 2010
and
M.P.No.1 of 2010
1. Sampath @ Arivazhagan
Rathina Padaiyachi (Died)
2. Navaneetham @ Santhanalakshmi
3. A.Amudha
4. R.Murugesan
(Petitioners 3 and 4 are legal heirs of
late Rathina Padaiyachi)
( C.T.accepted vide order of the court
dated 10.03.2010 made in M.P.No.1
of 2009) ... Petitioners
vs.
1. Mathivanan
2. Mangaiyarkarasi
3. Alagammal
4. R.Sundararajan ... Respondents
This civil revision petition is filed under Section 115 of the CPC against the order and decree dated 17.04.2009 passed by the learned Subordinate Judge, Ariyalur in I.A.No.81 of 2008 in A.S.No.45 of 1992.
For Petitioner : Mr.R.Natarajan
For Respondents : M/s.K.Kanthimathi for RR2 and 4
No appearance for RR1 and 3
ORDER
Inveighing the order dated 17.04.2009 passed by the learned Subordinate Judge, Ariyalur in I.A.No.81 of 2008 in A.S.No.45 of 1992, this civil revision petition is focussed.
2. Heard the learned counsel for the petitioner and the learned counsel for respondents 2 and 4. Despite printing the names of R1 and R3 in the cause list, no one appeared.
3. A ‘resume’ of facts, absolutely necessary and germane for the disposal of this civil revision petition would run thus:
A.S.No.45 of 1992 filed by the revision petitioners herein was dismissed. Whereupon, with an avowed intention to file Second Appeal, the revision petitioners herein filed copy application and when the stamps were called for, they were not deposited. Whereupon the court struck off the copy application. Subsequently, I.A.No.81 of 2008 was filed after 1105 days so as to restore the said application, which was struck off. The lower court after hearing both sides dismissed the said application on the ground that there was no valid ground for restoring the application after such long delay.
4. The point for consideration is as to whether there is any justification for restoring the copy application, which was struck off?
5. At the outset itself, I would like to refer to the relevant portions of Rule 129 of the Civil Rules of Practice and it is extracted here under for ready reference:
“129(1) Notice as to stamp papers Every day between the hours of 3 and 5 p.m a list showing the applications, in which the records have been received and the number of stamp papers required shall be prepared and affixed to the court’s notice board. Such list shall remain suspended for three working days. If the required stamp papers have not been deposited by 3 p.m.on the next (fourth) working day, the application shall be struck off. Between the hours of 3 and 5 p.m on each of the intermediate days, the application upon which the requisite deposits have been made shall be struck off the list. ………………………………………………………………….”
(2) Any application for copies struck off under the above rule, may be restored by the court on a petition supported by an affidavit preferred for that purpose. The petitioner may deposit the required copy stamps along with the petition for restoration of the application for copies. If he does not do so, the required stamps should be called for in the usual course, after the application is ordered to be restored.
Every certified copy furnished after such restoration of the application for copies shall bear an endorsement showing in addition to the details specified in Rule 133 infra, the following namely:-
1. the date on which the application was struck off;
2. the date on which petition was filed to restore the application; and
3. the date on which the application restored to file.
……………………………………………………………….”
(emphasis supplied)
A mere reading of the aforesaid provision would clearly display and demonstrate that three days’ time alone is contemplated under such provision for depositing the stamp papers. But, in this case, there was a delay of 1105 days.
6. Section 148 of the Code of Civil Procedure contemplates extension of time by 30 days. But it is quite obvious and axiomatic that the delay is admittedly 1105 days in this case. The lower court, taking into consideration the over all circumstances in this case, felt that the explanation furnished by the petitioners that owing to inadvertence and misplacement of the records, the delay occasioned, was unbelievable and untenable and accordingly, dismissed the said I.A.
7. I recollect and call-up the trite proposition that if the delay is meagre, the court need not be very strict in scrutinising the reasons advanced by the petitioners; but on the other hand, if the delay is enormous, as in this case, the reasons should be scrutinised strictly as has been correctly pointed out by the lower court. The reason furnished by the petitioners for condoning the enormous delay is totally unacceptable, warranting no interference by this court.
8. Hence, in these circumstances, I could see no reason to interfere with the order passed by the lower court in not restoring the copy application, which was struck down.
9. Accordingly, this civil revision petition is dismissed. No costs. Consequently,the connected miscellaneous petition is closed.
vj2 28.06.2010 Index :Yes Internet :Yes To The Subordinate Judge, Ariyalur G.RAJASURIA,J. vj2 C.R.P.(NPD).No.1056 of 2010 28.06.2010