IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP No. 227 of 2004()
1. GATI DESK TO DESK CARGO, 1-7-293,
... Petitioner
Vs
1. M/S.UNITED INDIA INSURANCE COMPANY LTD.,
... Respondent
2. FERTILIZERS AND CHEMICAL TRAVANCORE LTD.
For Petitioner :SRI.JOHN JOSEPH(ROY)
For Respondent : No Appearance
The Hon'ble MR. Justice K.T.SANKARAN
Dated :22/02/2008
O R D E R
K.T.SANKARAN, J.
--------------------------------------------
C.R.P. NO. 227 OF 2004 D
--------------------------------------------
Dated this the 22nd February, 2008
O R D E R
The revision petitioner challenges the order in I.A.No.242 of 2003 in
A.S.No.93 of 2003, on the file of the Court of the Additional District Judge,
North Paravur, which was filed against judgment and decree in
O.S.No.140 of 2000, on the file of the Additional Sub Court, North Parur.
There was a delay of 273 days in filing the appeal. I.A.No.242 of 2003
was filed under Section 5 of the Limitation Act to condone the delay. The
court below dismissed the application as per the order dated 18th
December, 2003, which is under challenge in this Revision.
2. The contention of the revision petitioner is that he was not
aware of the decree passed by the trial court on 11.9.2002 and that he
came to know about the decree only on 5.3.2003, when a communication
was received from the respondent requesting the petitioner to satisfy the
decree. It is stated that immediately, the petitioner made arrangements to
obtain certified copy of the decree. However, the counsel did not apply for
copy and only on 30.5.2003, certified copy was applied for. The appeal
was filed on 10.7.2003, though the certified copy was received in June,
2003. The court below held that the reasons are not sufficient to condone
C.R.P. NO.227 OF 2004
:: 2 ::
the delay. The reason stated for dismissing the application is that an
affidavit sworn to by the counsel was not filed and that the reason stated
by the petitioner that the counsel failed to inform about the decree passed
by the trial court is not a reason for condoning the delay. Having found
that the reason stated is not a reason which is capable of being accepted,
the court below could not have naturally expected an affidavit of the
counsel. Even if such an affidavit is filed, for the reason already stated by
the court below, the delay could not be condoned by it.
3. It is true that the affidavit of the counsel is not filed. It is also
true that failure on the part of the counsel to inform the petitioner about
the dismissal of the suit, strictly speaking, is not a ground for condoning
the delay. It is to be noted that the petitioner is having his office at
Secunderabad and naturally they have to rely on their advocate. There
was lapse on the part of the advocate and it was so stated by the
petitioner in the affidavit accompanying the application. The court below
could have, according to me, allowed the application on terms so that the
inconveniences caused to the respondents are, to some extent, taken
care of. By disposal of the appeal on the merits, no prejudice could be
caused to the respondents. The prejudice caused to the respondents is
only in the matter of delay. In the facts and circumstances of the case, I
am of the view that the application can be allowed on terms.
C.R.P. NO.227 OF 2004
:: 3 ::
For the reasons stated above, the order impugned is set aside and
I.A.No.242 of 2003 in A.S.No.93 of 2003 is allowed on condition that the
petitioner shall deposit before the court below, for payment to the
respondents, a sum of Rs.3,500/- as costs, within a period of six weeks
from today. If the petitioner fails to deposit the costs, the Civil Revision
Petition shall be treated as dismissed.
(K.T.SANKARAN)
Judge
ahz/
K.T.SANKARAN, J.
——————————————-
——————————————-
C.R.P.NO. 227 OF 2004 D
O R D E R
22nd February, 2008
——————————————-