Valli Ammal, v. Rajathi Ammal,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated:13.12.2017
CORAM
THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN CRP.No.1541 of 2006 1.Valli ammal 2.Poorani Ammal .. Petitioners Vs.
1.Rajathi Ammal 2.Ariyachi (Minor) 3.Iswariya (Minor) 4.Seenuvasan 5.Krishnamoorthy .. Respondents Prayer: Civil Revision Petition filed under 115 of Civil Procedure Code, against the fair and decretal order dated 16.06.2006 passed in I.A.No.717 of 2003 in Un-Registered A.S.No. of 2003 on the file of the Principal District Judge, Villupuram.
For Petitioners :M/s.C.Jayachitra for T.S.Baskaran For Respondents : No Appearance for R1 to R5
O R D E R
This petition is filed against the fair and decretal order dated 16.06.2006 passed in I.A.No.717 of 2003 in Un-Registered A.S.No. of 2003 on the file of the Principal District Judge, Villupuram.
2. To set aside the ex-parte decree, the revision petitioner has filed an application in I.A.No.717 of 2003 with a delay of 508 days. The revision petitioner has averred in the affidavit filed in support of the condone delay application that she suffered from Jaundice. She took treatment in the village and she was advised not to undertake any travel. She was bed-ridden for months together. Later after recovery from sickness, she contacted her counsel, but he informed about the delay in filing the appeal. In the meantime, the revision petitioner received notice in the execution proceedings. Thereafter, only she came to know that an ex-parte decree was passed against her in the said suit. Thereafter, she filed an application to set aside the ex-parte decree with a delay of 508 days.
3. The revision petitioner stated that the delay is neither willful nor wanton, but the same is beyond her control and without her knowledge. Hence, she prayed to condone the delay of 508 days in seeking to set aside ex-parte decree.
4. The case of the respondent in lower court is that the petitioners have not given any valid reason for the huge delay of 508
days in filing the appeal. Since a huge delay should not be condoned for the simple reason, the petitioners have not explained each and every day delay. Considering the case of both sides, the learned Judge dismissed the petition filed by the petitioner. Challenging the said order, the present Civil Revision Petition has been filed.
5. I heard Ms.C.Jayachitra for T.S.Baskaran, learned counsel appearing for the petitioner and there was no representation on behalf of the respondent and perused the materials available on record.
6. Admittedly, the petitioners have filed I.A.No.717 of 2003 for condoning the delay of 508 days in filing the appeal, but the same was dismissed on 16.06.2006, on the ground that the petitioners have not given any valid reason for the huge delay in filing the appeal.
7. The Hon'ble Supreme Court in a recent Judgment in Civil Appeal No.(S).3777 of 2015 it is held that there was a delay of 882 days delay in preferring an appeal suit and the said petition was dismissed by this Court by order dated 05.06.2013 in CRP(NPD)No.266 of 2011 and an appeal was filed before the Hon'ble Apex Court in Civil Appeal No.(S).3777 of 2015 in which the Hon'ble Apex Court has
passed an order as follows:
"Leave granted.
This appeal arises out of an order dated 5th June, 2013, passed by the High Court of Judicature at Madras whereby CRP(NPD)No.266 of 2011 filed by the appellant has been dismissed and the order passed by the first appellate court declining condonation of 882 days in the filing of the appeal by the appellant affirmed.
We have heard learned counsel for the parties at some length. We are satisfied that in the facts and circumstances of the case, the first appellate court could and indeed ought to have condoned the delay in the filing of the appeal. Since, however, the delay is fairly inordinate, we are inclined to direct condonation subject to payment of costs.
We accordingly allow this appeal, set aside the orders passed by the High Court and that passed by the first appellate Court with the direction that upon deposit of a sum of Rs.50,000/- (Rupees fifty thousand) towards costs before the first appellate
court within six weeks from today, the delay in the filing of the appeal shall stand condoned. The first appellate court shall hear and dispose of the first appeal filed by the appellant expeditiously and as far as possible within a period of six months from the date the costs are deposited by the appellant. The amount of costs shall be paid to the respondent. The appeal is allowed in the terms and to the extent indicated above."
The Hon'ble Apex Court has allowed the Civil Appeal No.(S).3777 of 2015 on condition that the appellant shall pay a sum of Rs.50,000/- as cost to the respondent in the said appeal.
8. Therefore, applying the said judgment though the petitioners have not given any valid reason for each and every day delay, the revision petitioner has averred in the affidavit filed in support of the condone delay application that she suffered from Jaundice. After recovery from sickness, she contacted her counsel, but he informed about the delay in filing the appeal. Hence, there is a delay of 508 days in filing the appeal. Therefore, by giving one more opportunity to these petitioners, this civil revision petition has to be allowed by
setting aside the order passed in I.A.No.717 of 2003, but the petitioners should compensate the respondent.
9. In the result:
(a) this civil revision petition is allowed by setting aside the order passed in I.A.No.717 of 2003, on condition that the petitioners should pay a sum of Rs.5,000/- as cost to the Headmistress Government Hobart Muslim (Girls) Higher Secondary School, Whites Road, Royapettah, Chennai - 600 014,, within a period of three weeks from the date of receipt of a copy of this order;
(b) on production of payment receipt within the time stipulated by this Court, the trial Court viz. the learned Principal District Judge, Villupuram, is hereby directed to number the appeal and dispose of the same within a period of three months, by giving notice to either parties;
(c) The learned learned Principal District Judge, Villupuram, is directed to take up the appeal on day to day basis, without giving any adjournments to either parties. Both
the parties are hereby directed to give their fullest co-operation for early disposal of the appeal.
13.12.2017 Speaking Order/ Non Speaking Order Index:Yes ub To The learned Principal District Judge, Villupuram.
M.V.MURALIDARAN, J.
ub CRP.No.1541 of 2006 13.12.2017