Ramkumar v. Palaniyammal

ORDER This Civil Revision Petition has been filed seeking to set aside the fair and decretal order dated 07.03.2020 passed in I.A.No. 96 of 2019 in Unnumbered A.S. in CFR.No. 6054 of 2019 passed by the learned Principal District Judge, Erode.

¶2Heard both sides and perused the materials available on record.

¶3The revision petitioner/plaintiff has filed the suit in O.S.No.59 of 2014 before the Subordinate Court, Sathyamangalam, for partition and preliminary decree to divide the suit property into three equal shares and allot one such share to the plaintiff and separate possession of the same and for costs. After perusing the records, the suit was dismissed by the trial Court on 07.11.2016. Subsequently, the revision petitioner has preferred an appeal before the learned Principal District Judge, Erode, against the judgment and decree dated 07.11.2016. Subsequently, the revision petitioner has filed I.A.No. 96 of 2019 in Unnumbered Appeal Suit in C.F.R.No. 6054 of 2019 before the learned Principal District Judge, Erode, under Order 41 Rule 3(A) and Section 151 of CPC., seeking to condone the delay of 978 days in filing the Appeal Suit. After perusing the records, the trial Court dismissed the said application by order dated 07.03.2020 in I.A.No.96 of 2019 in Unnumbered A.S. in CFR.No. 6054 of 2019. Aggrieved by the said order, the revision petitioner has filed the present Civil Revision Petition.

¶4The learned counsel for the revision petitioner contended that the revision petitioner has preferred an appeal against the judgment and decree dated 07.11.2016 in O.S.No.59 of 2014. Unfortunately, he went to Kollegal, Karnataka State, for his business work and stayed there from October, 2016 for the past 2 1/2 years and now only returned from Kollegal. Therefore, due to the above reasons, he did not prefer any appeal within prescribed time and hence, there is a delay of 978 days in filing the appeal suit. Hence, the revision petitioner prays to set aside the findings of the trial Court.

¶5The learned counsel for the respondents contended that the revision petitioner has not produced any materials to show that he was carrying on the business at Kollegal and also stayed there. In the absence of any particulars, the said allegations are false. Therefore, the revision petitioner has not assigned sufficient reason to condone the inordinate delay of 978 days. The petitioner has failed to explain each and every day's delay. As the petitioner has not filed any appeal well within the time as mandated under Article 116(a) of the Limitation Act, and hence, the said application is not maintainable. Therefore, the respondents pray to dismiss the above Revision.

¶6On a perusal of the records, it reveals that the suit in O.S.No.59 of 2014 was filed by the revision petitioner/plaintiff, for partition and preliminary decree. The respondents 1 & 2 are the mother and sister of the revision petitioner. The 1st respondent had filed written statement but had not cross-examined the PW1 and hence, she was set ex-parte. The 2nd respondent have not contested the suit by filing written statement before the trial Court. On the side of the petitioner/plaintiff, PW1-Ramkumar and PW2-Vadivel have been examined and Ex.A1 to Ex.A11 have been marked. On the side of the respondents, no witnesses have been examined and Ex.R1 was marked through PW1. Therefore, the respondents were being called absent and set ex-parte and subsequently, the suit was dismissed by the trial Court on 07.11.2016.

¶7It is also seen that the revision petitioner has not established any sufficient cause for not preferring the appeal within prescribed time. The plea taken up by the petitioner is that he went to Kollegal, Karnataka, for his business affairs and stayed there from October, 2016 for the past 2 1/2 years, he was held up at Kollegal. Therefore, he could not prefer the appeal in time and hence, there is a delay of 978 days in preferring the appeal. It is strongly objected by the respondents that the reason was assigned by the petitioner is an utter false and there is no document to show that he was carrying on business at Kollegal.

¶8PW1-Ramkumar in his cross-examination has deposed is as follows:- "bfhs;nsfhypy; ehd; hpay; v!;nll; bjhHpy; bra;J te;njd;/ mjw;F chpkk; bgwtpy;iy/ vdJ kidtp. kf;fs; ,Ug;gJ rj;jpak';fyj;jpy; vd;why; rhpjhd;/ ehd; bjhlh;r;rpahf bfhs;nsfhypy;jhd; ,Ue;njd;/ bjhHpy; fhuzkhf vd;dhy; mof;fo rj;jpak';fyk; tu Koatpy;iy/ thuj;jpw;F ,UKiw tu tha;g;g[ cz;lh vd;why; ,y;iy/ ehd; bfhsnsfhypy; j';fp ,Ue;jijf; fhl;l Mtzk; cs;sJ/ njitg;gl;lhy; jhf;fy; bra;fpnwd;/ ,Jtiu jhf;fy;bra;atpy;iy/ ehd; ve;j njjpapy; bfhs;nsfhy; ngha; ve;j njjpapy; jpUk;gp te;njd; vd;W rhpahfj; bjhpahJ/ 2 1-2 tUlk; m';F ,Ue;njd;/" Though the reason was assigned by the petitioner that he went to Kollegal, Karnataka State, for his business affairs and stayed there, but, he has not filed any proof. There is no oral or documentary evidence to show that the petitioner was running a business at Kollegal.

¶9On the other hand, the learned counsel for the respondents contended that the reason was assigned by the petitioner is not acceptable for the reason that the petitioner had regularly appeared before the criminal Court and gave evidence which was initiated by the first respondent and there is no merit in the application and it is liable to be dismissed. To support his contention, he has filed Ex.R1 is the certified copy of the Diary Extract of STC.No.805 of 2018 on the file of Judicial Magistrate Court, Sathyamangalm. On perusal of Ex.R1, it reveals that the petitioner who is cited A1 in the said case. In this regard, the PW1 in his cross examination deposed is as follows:- "rj;jp Fw;wtpay; ePjpkd;wj;jpy; M$uhfpapUf;fpnwd;/ 2017 my;yJ 18 vd;why; "hgfk; ,y;iy/ /// /// Fw;wtpay; ePjpkd;wk; rj;jpapy; rhl;rpak; mspj;Js;nsd;/ tUlk; "hgfk; ,y;iy/ //// //// bfhs;nsfhypy; ,Ue;J te;Jjhd; ePjpkd;w tha;jhtpw;F M$uhndd;/"

¶10From the above evidence of PW1 and the contention of Ex.R1, it clearly shows that the petitioner has regularly appeared in criminal Cases before the learned Judicial Magistrate, Sathyamangalam, and therefore, the reason was assigned by the petitioner seeking to condone the delay of 978 days, is not acceptable one. It is also seen that the trial Court dismissed the suit on 07.11.2016. The petitioner has applied copy application on

15.07.2019 and it was made ready on 15.07.2019. The petitioner has preferred an appeal on 17.07.2019. By calculating the delay, it comes to 978 days. The petitioner was very negligent in filing the appeal within the period of limitation. Further, PW1 in his cross examination has deposed is as follows:- v';fsJ tHf;fwp"h; tPl;oy; ,Ue;J xU gh;yh'; Jhuj;jpy;jhd; ehd; FoapUe;J tUfpnwd;/ /// /// jPh;g;gpw;F gpd;dh; vdJ tHf;fwp"hplk; nky;KiwaPL bra;a[k;go brhd;ndd;/ mth; jhf;fy; bra;jhuh vd;W ehd; nfl;ftpy;iy/ /// /// ,e;j kDit 2016k; Mz;nl jhf;fy;bra;a[k;go brhd;ndd;/ vd; tHf;fwp"h; tpl;Ltpl;lhh;/ ehDk; mij gpd;bjhluhky; tpl;Ltpl;nld;/ O.S.No. 59 of 2014 tHf;fpYk; STC.No.805 of 2018 tHf;fpYk; vdf;F xnu tHf;fwp"h; vd;why; rhpjhd;/ nkw;go tHf;FfSf;fhf ehd; tHf;fwp"iu brd;W re;jpj;njd; vd;why; rhpjhd;/

¶11From the above evidence, it is very clear that the petitioner has been lethargic and negligent in conducting the case. Considering the reason was assigned by the petitioner, it is very clear that he has been lethargic and negligent in conducting the case and invented a reason as he was doing business at Kollegal, Karnataka State and stayed there, and held up for the past 2 1/2 years at Kollegal for filing the said application and he did not come to the Court with clean hands. Therefore, the reason was assigned by the petitioner is not satisfactory and each and every day's delay has not been explained by him and he did not file the appeal in time and hence, there is a delay of 978 days in filing the appeal. Hence, there is no merits and no bona-fide is found in the revision. Therefore, this Court is not inclined to allow the above Revision and accordingly, the above Revision is dismissed.

¶12With the above observations, the Civil Revision Petition is dismissed.

13.02.2023 Index : Yes/No Speaking order : Yes/No msm To

¶1The Principal District Judge, Erode.

¶2The Section Officer, V.R.Section, High Court, Madras.

V.BHAVANI SUBBAROYAN, J. msm

13.02.2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.02.2023 CORAM: THE HONOURABLE MRS. JUSTICE V.BHAVANI SUBBAROYAN Ramkumar .. Petitioner Versus 1. Palaniyammal 2. Tamilselvi .. Respondents Civtiil Revision Petition is filed under Article 227 of the Constitution of India, prays, to set aside the fair and decretal order dated 07.03.2020 passed in I.A.No. 96 of 2019 in Unnumbered A.S. in CFR.No. 6054 of 2019 passed by the Principal District Judge, Erode. For Petitioner : Mr.J. Ranjith Kumar For Respondents : Mr.M.P. Rajendran : ----