The revision petitioner/2nd defendant has filed this present civil revision petition as against the order dated 13.7.2007 in I.A.No.1306 of 2005 of 2006 in A.S.No. /2005 in C.R.F.No.22187 of 2005 in O.S.No.1941 of 1997 passed by the learned Principal District Judge, Coimbatore in dismissing the application filed by the revision petitioner/second defendant under Section 5 of the Limitation Act praying to condone the delay of 721 days in preferring an appeal.
2. The trial Court, while passing orders in I.A.No.1306/2005 has among other things observed that the revision petitioner has not assigned proper reason or explanation as to what date the alleged family arrangement has taken place and why the same has not been put into writing and further that before and after the issuance of Ex R1 notice, on what date, the purported family arrangement has been made has not been given in detail by the revision petitioner and therefore the factum of the said family arrangement has not been established and the revision petitioner has taken part in the proceedings of the final decree in I.A.No.737 of 2004 and after a lapse of one year has filed this present I.A.No.1306 of 2005 and more over, the revision petitioner has not explained each and every day delay and he has not given sufficient cause or explanation as to the said delay on 721 days and resultantly dismissed the application without costs.
3. The learned counsel for the revision petitioner/second defendant urges before this Court that the appellate Court has not appreciated the fact that after the preliminary decree has been passed in the main suit on 20.12.2002 later there has been a settlement entered into between the plaintiff, first defendant and the second defendant and that the plaintiffs have also not filed any application for passing of final decree and after the death of the revision petitioner's sister Mrs. Latha, her husband has filed an application belatedly for passing of final decree and as a matter of fact, the case cannot be thrown out at an early stage and the appellate Court has not given an opportunity to the revision petitioner to contest the case and in a case where the delay is neither deliberate nor wilful then the approach of the appellate Court ought to have been in a liberal way and these aspects have not been looked into by the appellate Court in a proper perspective and therefore prays for allowing the civil revision petition in furtherance of substantial cause of justice.
4. Per contra, the learned counsel for respondents 3 to 5 herein( respondents 5 to 7 in I.A.No.1306 of 2005) submits that the appellate Court has taken note of all the facts and circumstances of the case in an integral fashion and in fact the appellate Court has categorically observed that in regard to the delay of 721 days has not been explained by the revision petitioner properly and more over the appellate Court has also come to the conclusion that the family arrangement alleged by the revision petitioner/second defendant has not been proved and resultantly dismissed the application on merits and therefore, the same need not be interfered with by this Court sitting in revision.
5. This Court has paid its anxious consideration to the arguments advanced on either sides and noticed the contentions of the learned counsel for the respective parties.
6. In the affidavit in I.A.No.1306 of 2005 filed by the revision petitioner/second defendant, it is inter alia averred that after passing of the preliminary decree for partition, the plaintiffs and the first defendant have entered into a settlement with him, in view of the said settlement, the plaintiffs have not filed any application for passing a final decree and he has not preferred any appeal. After the death of the second plaintiff, her husband along with his children has filed an application I.A.No.737 of 2004 praying for a passing of final decree and therefore he has been perforced to prefer an appeal and in the mean time, the case bundle has been misplaced and the same has been traced out now and in the process, there is a delay of 721 days in preferring the appeal and the same is to be condoned, since his valid rights are involved in the appeal.
7. Before the appellate Court, the second respondent/4th defendant/4th respondent has filed a counter to I.A.No.1306 of 2005 inter alia mentioning that her husband who is the third respondent in I.A.No.1306 of 2005 and her three children have entered into family settlement on 27.3.2003 and settled all their disputes and the revision petitioner's claim of ownership of the suit property as per the earlier family arrangement has been accepted by the parties etc and after unforeseen death of her younger daughter Latha , her husband Radhkrishnan, 5th respondent herein (7th respondent in I.A.No.1306/2005) has become inimical towards her family and has been giving all sorts trouble and he has filed a final decree application suppressing the said settlement with a view to gain unlawfully and therefore has prayed for dismissal of the said application.
8. Respondents 3 to 5 herein (Respondents 5 to 7 in I.A.No.1306 of 2005) has filed a counter before the appellate Court stating that the plaintiffs have caused a legal notice on 9.7.2003 to the revision petitioner mentioning about the passing of the preliminary decree and for amicable partition of suit property as per the preliminary decree and that the revision petitioner has received the same on 14.7.2003 and that he has not sent a reply mentioning about the settlement and this shows that the alleged settlement after passing of the preliminary decree is an utter false one and more over the revision petitioner has served notice regarding the final decree application and he has appeared through his lawyer on 13.1.2004 and he has taken time for ten hearings and has not filed counter mentioning about the purported settlement arrangement and he has been set exparte in the final decree application and he has not filed any application to set aside the same and this I.A.No.1306/2005 has been filed suppressing the facts and alleging falsity and further he has preferred an appeal without sufficient cause or valid grounds and therefore delay in filing an appeal cannot be condoned.
9. It is the further case of the respondents 3 to 5 that the Commissioner has been appointed in the final decree I.A.No. 737 of 2004 and he has filed his report and plan with the help of a surveyor and that the revision petitioner has informed the Commissioner during inspection through his cell phone that he has no objection for the Commissioner surveying the suit property and as a matter of act a sum of Rs.3,000/- has been paid as remuneration to the Commissioner and further a sum of Rs.2000/- has been incurred as expenses for the surveyor besides, the transport, and incidental expenses and there are no valid sufficient grounds to condone the delay of 721 days in filing the appeal and also that it is barred by limitation.
10. The learned counsel for the revision petitioner/second defendant brings it to the notice of this Court in N.Balakrishnan-v- M.Krishnamurthy(1999 -1L.W.739) whereby and whereunder, it is mentioned that 'length of delay is not a matter and sufficiency of the explanation is the relevant criterion and the duty of the Court is to advance substantial justice and give liberal construction to the Section and the Rules of limitation are not meant to destroy rights of parties and refusing to condone the delay is foreclosing a suitor from putting forth his cause and further there is no presumption that delay in approaching the Court is always deliberate and delay has been condoned on terms.
11.It is to be borne in mind that the words 'sufficient cause' and under Section 5 of the Limitation Act will have to be construed by a Court of Law liberally and as a matter of fact it is not for the Court of Law to adopt pedantic approach in this regard. In short Section 5 of the Limitation Act has to be employed in a meaningful and effective way.
12. It is pertinent to point out that by refusing to condone the delay there is a possibility of meritorious matter being thrown out at the nacent stage and thereby resulting in cause of justice being defeated. Per contra, if the condonation of delay application is allowed by a Court of Law then a maximum thing that can happen is that an opportunity will be given to a party to take part in the proceedings and then the Court will have an occasion to decide the cause of merits. In fact, the length of delay is immaterial. Moreover, deliverance of substantial justice will have to be considered by a Court of Law, over riding the technical consideration. In fact a litigant does not stand to gain by causing delay in a given case. But on the other hand, he runs a serious risk. There is no assumption or presumption or even a conjectures that the delay has occasioned based on malafides or on account of deliberate or culpable negligence of a party.
13. Apart from the above, the Rules of Limitation are not meant to destroy the rights of the parties. The primordial duty of a Court of Law is to resolve the disputes/controversies between the parties and to advance substantial cause of justice. Therefore in the light of the well settled principles referred to supra, this Court without going into the merits of the case and exercising its discretion in a diligent manner allows the civil revision petition subject to the condition that the revision petitioner shall pay a sum of Rs.2,500/-(Rupees two thousand five hundred only) towards cost to the learned counsel for the respondents 3 to 5 herein directly to b e paid on or before 27.7.2009 failing which the revision petition shall stand dismissed automatically without any further reference. Consequently, connected M.P.No.1 of 2008 is closed.
sg To The Principal District Judge, Coimbatore