Ayyaswami Alias Ayyavoo Gounder Vs. Venugopal Alias Venugopal Gounder - Court Judgment

Excerpt:
- ordergovardhan, j.1. the revision is against the order passed by the subordinate judge, tindivanam dated 29.9.1995 in i.a. no. 427 of 1993 in unnumbered c.m.a. no. of 1993.2. the petitioner in his petition contends as follows : in the suit filed against the petitioner, temporary injunction has been granted by the trial court against the petitioner. the petitioner has instructed his advocate to file an appeal against the said order. the advocate informed him that he would inform the petitioner as soon as gets copy of the order. but, no communication has been received from the advocate. when contacted, the advocate informed him that he has sent a letter. therefore, the petitioner has filed an application for copy and filed the appeal. there is a delay of 10 days. the delay is not wilful. it may be condoned.3. the respondent in his count contends as follows : the allegation that the advocate informed the petitioner that he had already applied for copies, and informed him that he would write in due course is to be proved by him. the further allegation that the advocate informed him that he has written a letter and that he has not received the said letter is not correct. there is delay in filing the copy application itself to get an order copy. the delay is more than ten days. it has not been properly explained. the application is therefore liable to be dismissed.4. on the above pleadings, the learned sub judge held an enquiry and gave a finding that the petitioner has not given a satisfactory explanation for the delay and dismissed the said application. as against the said order, this revision is preferred.5. the learned counsel appearing for the revision petitioner has argued that the learned sub judge has dismissed his application for condoning the delay relying upon the decision of the court in c.m.p. no. 15518 of 1991, dated 25.2.1992 in which, this court has held that if the application for the copy of the judgment and decree itself was made after the expiry of the period of limitation, there is no scope at all under section 12 of the limitation act for inclusion of the time taken for obtaining the said copy while computing the period of limitation and therefore, the application filed belatedly is liable to be dismissed since the applicant in the i.a., has applied for copy of the order after the expiry of the period of limitation fixed for it viz., after one month. according to the learned counsel appearing for the revision petitioner, this finding of the learned sub judge is erroneous since the full bench of this court has held in the decision reported in the special tahsildar (l.a.) bhel, ranipet v. m.g. sampathkumar and anr. 1993 t.l.n.j. 401 that even when the copy application for certified copies of the judgment and decree is filed beyond the period prescribed for appeal, sec.5 can be invoked for condonation of delay in filing an appeal provided sufficient cause is shown and therefore, when the petitioner contends that the advocate had informed him that he would write a letter soon after getting the copy and asserts that he has written a letter while in fact, he has not received any letter from the advocate, there is sufficient cause shown by the petitioner for preferring the application to condone the delay and therefore, the order of the subordinate judge should be set aside. the ruling relied upon by the learned counsel appearing for the revision petitioner no doubt provides that sec.5 of the limitation act does not prohibit any appellant/applicant to file an application under sec.5 of the limitation act to condone the delay even if he has applied and obtained certified copies of the judgment and decree after the prescribed period of limitation. in all cases, what is to be decided is whether sufficient cause has been shown or not. we cannot ignore this portion of the order of the full bench which contemplated that what is to be decided is whether sufficient cause has been shown or not. in the case on hand, the cause shown by the petitioner in the i.a., viz., the revision petitioner for filing the appeal belatedly is that his advocate had informed him that he would inform him soon after getting the copy of the order and when he contacted the advocate, he has been informed by the advocate that he had written a letter to him, but no such letter has been received by him and that was the cause for the delay. in other words, the delay is said to be the non-receipt of the letter said to have been sent by the advocate to him. it is not his case that the revision petitioner has changed his address or he was out of station. if any letter has been addressed by the advocate, certainly, the revision petitioner would have received it. when he asserts that he has not received any letter from his advocate, the inference to be drawn is that no such letter has been addressed by the advocate. to rebut this presumption, the petitioner ought to have filed an affidavit of the advocate who is said to have written to him a letter regarding the disposal of the interlocutory application and the receipt of the copy of the said order. but, no such affidavit has been filed. the revision petitioner could have examined the advocate or his clerk to speak that a letter was actually written to the petitioner by the concerned advocate. but, no such evidence has also been placed before the court. in the above circumstances, the petitioner in the i.a., the condone the delay cannot be said to have given sufficient cause for the delay in filing the appeal. therefore, i am of opinion that the order passed by the learned sub judge is dismissing the appeal does not warrant any interference by this court on the ground that the revision petitioner has not established sufficient cause for the delay in filing the appeal and not on the ground stated by the learned sub judge in his order.6. in the result, the civil revision petition is dismissed as not admitted. since the suit is of the year 1993 and the revision petitioner is said to be suffering on account of the interim injunction granted by the trial court, the trial court is directed to dispose of the suit before the end of june, 1997 and report the matter to this court, c.m.p. no. 463 of 1997 is dismissed.

Judgment:
ORDER

Govardhan, J.

1. The revision is against the order passed by the Subordinate Judge, Tindivanam dated 29.9.1995 in I.A. No. 427 of 1993 in unnumbered C.M.A. No. of 1993.

2. The petitioner in his petition contends as follows : In the suit filed against the petitioner, temporary injunction has been granted by the trial Court against the petitioner. The petitioner has instructed his advocate to file an appeal against the said order. The advocate informed him that he would inform the petitioner as soon as gets copy of the order. But, no communication has been received from the advocate. When contacted, the advocate informed him that he has sent a letter. Therefore, the petitioner has filed an application for copy and filed the appeal. There is a delay of 10 days. The delay is not wilful. It may be condoned.

3. The respondent in his count contends as follows : The allegation that the advocate informed the petitioner that he had already applied for copies, and informed him that he would write in due course is to be proved by him. The further allegation that the advocate informed him that he has written a letter and that he has not received the said letter is not correct. There is delay in filing the copy application itself to get an order copy. The delay is more than ten days. It has not been properly explained. The application is therefore liable to be dismissed.

4. On the above pleadings, the learned Sub Judge held an enquiry and gave a finding that the petitioner has not given a satisfactory explanation for the delay and dismissed the said application. As against the said order, this revision is preferred.

5. The learned Counsel appearing for the revision petitioner has argued that the learned Sub Judge has dismissed his application for condoning the delay relying upon the decision of the Court in C.M.P. No. 15518 of 1991, dated 25.2.1992 in which, this Court has held that if the application for the copy of the judgment and decree itself was made after the expiry of the period of limitation, there is no scope at all under Section 12 of the Limitation Act for inclusion of the time taken for obtaining the said copy while computing the period of limitation and therefore, the application filed belatedly is liable to be dismissed since the applicant in the I.A., has applied for copy of the order after the expiry of the period of limitation fixed for it viz., after one month. According to the learned Counsel appearing for the revision petitioner, this finding of the learned Sub Judge is erroneous since the Full Bench of this Court has held in the decision reported in The Special Tahsildar (L.A.) BHEL, Ranipet v. M.G. Sampathkumar and Anr. 1993 T.L.N.J. 401 that even when the copy application for certified copies of the judgment and decree is filed beyond the period prescribed for appeal, Sec.5 can be invoked for condonation of delay in filing an appeal provided sufficient cause is shown and therefore, when the petitioner contends that the advocate had informed him that he would write a letter soon after getting the copy and asserts that he has written a letter while in fact, he has not received any letter from the advocate, there is sufficient cause shown by the petitioner for preferring the application to condone the delay and therefore, the order of the Subordinate Judge should be set aside. The ruling relied upon by the learned Counsel appearing for the revision petitioner no doubt provides that Sec.5 of the Limitation Act does not prohibit any appellant/applicant to file an application under Sec.5 of the Limitation Act to condone the delay even if he has applied and obtained certified copies of the judgment and decree after the prescribed period of limitation. In all cases, what is to be decided is whether sufficient cause has been shown or not. We cannot ignore this portion of the order of the Full Bench which contemplated that what is to be decided is whether sufficient cause has been shown or not. In the case on hand, the cause shown by the petitioner in the I.A., viz., the revision petitioner for filing the appeal belatedly is that his advocate had informed him that he would inform him soon after getting the copy of the order and when he contacted the advocate, he has been informed by the advocate that he had written a letter to him, but no such letter has been received by him and that was the cause for the delay. In other words, the delay is said to be the non-receipt of the letter said to have been sent by the advocate to him. It is not his case that the revision petitioner has changed his address or he was out of station. If any letter has been addressed by the advocate, certainly, the revision petitioner would have received it. When he asserts that he has not received any letter from his advocate, the inference to be drawn is that no such letter has been addressed by the advocate. To rebut this presumption, the petitioner ought to have filed an affidavit of the advocate who is said to have written to him a letter regarding the disposal of the interlocutory application and the receipt of the copy of the said order. But, no such affidavit has been filed. The revision petitioner could have examined the advocate or his clerk to speak that a letter was actually written to the petitioner by the concerned advocate. But, no such evidence has also been placed before the Court. In the above circumstances, the petitioner in the I.A., the condone the delay cannot be said to have given sufficient cause for the delay in filing the appeal. Therefore, I am of opinion that the order passed by the learned sub Judge is dismissing the appeal does not warrant any interference by this Court on the ground that the revision petitioner has not established sufficient cause for the delay in filing the appeal and not on the ground stated by the learned Sub Judge in his order.

6. In the result, the civil revision petition is dismissed as not admitted. Since the suit is of the year 1993 and the revision petitioner is said to be suffering on account of the interim injunction granted by the trial Court, the Trial Court is directed to dispose of the suit before the end of June, 1997 and report the matter to this Court, C.M.P. No. 463 of 1997 is dismissed.