IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30/11/2010 CORAM THE HON'BLE MR.JUSTICE M.VENUGOPAL MP.1 of 2009 in Rev.A.SR.57116 of 2009 in AS.555 of 2003 :ORDER
M.P.No.1 of 2009
in
Review Application S.R.No.57116 of 2009
in
A.S.No.555 of 2003
M.VENUGOPAL,J.
The Petitioners/Applicants/Appellants/Defendants have filed the present Miscellaneous Petition praying to condone the delay of 681 days in preferring the Review Application in S.R.No.57116 of 2009 before this Court.
2.According to the Learned Counsel for the Petitioners/ Applicants, the Petitioners filed the Letters Patent Appeal as against the Judgment and Decree passed by this Court in A.S.No.555 of 2003 dated 14.08.2007 and the Registry has finally returned the relevant papers on 14.07.2009 stating that this Court has no jurisdiction to try the Letters Patent Appeal and advised the Petitioners to file the same before appropriate Court having jurisdiction and in the meanwhile, the Petitioners have been advised by Senior Advocates that the Review Petition may be filed before this Court and accordingly, the Review Application has been filed with a delay of 681 days, which is neither willful nor wanton but due to aforesaid reasons.
3.The Learned Counsel for the Respondents/Plaintiffs submits that the Petitioners have not explained the long delay of 681 days in the bald affidavit in M.P.No.1 of 2009 filed by the 1st Petitioner and the reasons assigned by the Petitioners are not satisfactory and the Petitioners after the dismissal of A.S.No.555 of 2003 are trying to protract the final decree proceedings and they projected an Application seeking stay under Section 10 of the Civil Procedure Code.
4.It is the contention of the Learned Counsel for the Respondents 1 and 2/Plaintiffs that the Section 10 C.P.C. Application has been dismissed on merits by the trial Court and the Petitioners preferred a Revision before this Court and the said Revision Petition has been dismissed by this Court on 05.08.2010 as not maintainable.
5.The Learned Counsel for the Respondents/Plaintiffs submits that the suit filed by the Respondents/Plaintiffs is one for partition and that final decree petition is also at the completion stage and the Petitioners’ intention is to avoid a final decree being passed, denying the Respondents’ right in the property and since the petition lacks bona fides, it deserves dismissal.
6.Earlier, the Registry has returned the papers filed by the Petitioners stating that Second Appeal is not maintainable and thereafter has also returned the papers directing the Petitioners to file the relevant papers before the appropriate forum. Finally, the Petitioners have filed the Review Application in S.R.No.57116 of 2009 with a condonation delay petition in M.P.No.1 of 2009.
7.At this juncture, this Court points out that it is for the Petitioners/Applicants to take appropriate steps in the manner known to law for prosecuting further proceedings as against the Judgment and Decree dated 14.08.2007 in A.S.No.555 of 2003 passed by this Court. The Petitioners merely coming out with a plea that they have filed initially Letters Patent Appeal and later on, this Court returned the papers saying that this Court has no jurisdiction to try the Letters Patent Appeal and advised the Petitioners to file the relevant papers before the appropriate Court and further that for some time the relevant papers have not been traced out by the Registry and subsequently, the Registry stating that Reconstruction Petition is not necessary and returning the same etc. and because of the advise tendered by some Senior Advocates, the Petitioners have filed the present Review Petition with a condonation of delay in M.P.No.1 of 2009 are of little avail to them because it is for them to choose the right forum well within the time prescribed by law or as per relevant provision of Civil Procedure Code. But, in the present case on hand, the Petitioners have not resorted to such a procedure.
8.Generally, delay condonation Application/Petition will have to be viewed liberally for the purpose of delivering substantial justice between the parties. Ordinarily, a litigant does not stand to benefit by lodging an Appeal belatedly or filing the papers before the wrong forum. Further, just because the relevant papers have been filed belatedly one cannot attribute mala fide on the part of the Petitioners, in the considered opinion of this Court.
9.When the deliverance of substantial justice and technical considerations are pitted against each other, then, the substantial justice will have overriding considerations against the technicalities. If an Application for condonation of delay is allowed, the maximum thing that can happen is, the parties are allowed to enter into main stream of legal proceedings and there is a possibility that there causes are being decided by a Court of Law on merits, of course by providing opportunities to parties in the manner known to law. It is to be remembered that the judiciary is respected not on account of its power to legalise injustice on technical grounds, but it is capable of removing injustice and is expected to do so.
10.That apart, while dealing with the delay condonation Application, a Court of Law is to adopt a pragmatic common sense approach and not to adopt a pedantic approach.
11.As far as the present case is concerned, though the Petitioners have assigned the reasons that they have filed earlier Letters Patent Appeal etc. and that some time the relevant papers have not been traced out by the Registry and subsequently, it has been traced out and therefore, reconstruction is not necessary etc. and notwithstanding the fact that the said reasons are not an unacceptable one, yet, to do substantial justice between the parties, this Court, by taking a lenient view to prevent an aberration of justice, allows this Petition by directing the Petitioners to pay a sum of Rs.2,500/- (Rupees Two thousand five hundred only) as costs to the Learned Counsel for the Respondents/Plaintiffs directly within a period of four weeks from the date of receipt of copy of this order, failing which, it is made clear that the Petition shall stand dismissed automatically without any further reference to this Court.
30.11.2010
Index : Yes
Internet : Yes
Sgl
M.VENUGOPAL,J.
Sgl
Order in
M.P.No.1 of 2009 in
Rev.Appln. S.R.No.57116 of 2009
in A.S.No.555 of 2003
30.11.2010