This Civil Revision Petition is filed by the respondents/defendants in O.S.No.93 of 2000 on the file of the Principal Munsif Court, Tirunelveli against the order of the learned Principal District Munsif, Tirunelveli, condoning the delay of 855 days in filing the appeal against the decree and judgment made in O.S.No.93 of 2000.
2.O.S.No.93 of 2000 was filed by one Kaivalyanathan, who is the husband of the first respondent and the father of the other respondents and that suit was filed for declaration and injunction, the subject matter of the property in that suit is situate in Survey No.518/2, of an extent of 96 cents in Keelaveeraraghavapuram village, Tirunelveli District. That suit was filed against the petitioner herein and two other persons.
3.According to the plaint allegations, the said property originally belonged to the father of the plaintiff, who purchased the same under a registered sale deed, dated 25.10.1949 and after the death of his father in the year 1975, the plaintiff, Kaivalyanathan, succeeded to that property and was enjoying the same. The plaintiff was residing at Chennai and therefore, taking advantage of the absence of the plaintiff in Tirunelveli, the defendants 1 and 2 sold the property by creating forged power to the revision petitioner and on the basis of the fraudulent sale deed, the defendants are attempting to claim ownership of the property and therefore, the plaintiff, Kaivalyanathan, filed a suit for declaration and injunction. The revision petitioner herein is the 3rd defendant in the suit. The suit was dismissed after contest on 05.03.2003. The plaintiff was examined as P.W.1 and the 3rd defendant viz., the revision petitioner herein was examined as DW1 and the 2nd plaintiff, the 5th respondent herein, was examined as P.W.2 and on both sides, documents were marked and after full contest, the learned District Munsif, dismissed the suit on 5.03.2003.
4.It is further admitted that along with O.S.No.93 of 2000, the said Kaivalyanathan filed two suits viz., O.S.Nos.92 and 94 of 2000, on the file of the Principal District Munsif, Tirunelveli and O.S.No.94 of 2000 was already settled and the O.S.No.92 of 2000 was pending at that time of dismissal of the suit O.S.No.93 of 2000. It is further stated by the respondents 1 to 4 herein, that Kaivalyanathan was conducting the suits till his life time and he died on 21.08.2004. It is further admitted that Kaivalyanathan engaged one Mr.S.P.S.Sivasubramanian, Advocate, for conducting both the suits on his behalf and the defendants 1 and 2 are the same defendants in both the suits. The same Advocate, Mr.S.P.S.Sivasubramanian, also filed vakalath in O.S No.637 of 1999, on the file of the Principal District Munsif, Tirunelveli, for and on behalf of Gomathi and Velladurai, who are the defendants 1 and 2 in O.S. Nos. 92 and 93 of 2000. Therefore, it is the case of the respondents 1 to 4 that the Advocate, Mr.S.P.S.Sivasubramanian, who appeared for the plaintiffs in O.S. No.637 of 1999 also appeared for Kaivalyanathan in the suit O.S.No.92 and 93 of 2000 and in those two suits, the defendants are none other than the plaintiffs in O.S No.637 of 1999. Therefore, it is alleged by the respondents 1 to 4 that the Advocate, Mr.S.P.S.Sivasubramanian, played fraud on Mr.Kaivalyanathan and did not conduct the case properly and did not inform Kaivalyanathan about the dismissal of O.S. No.93 of 2000, which was dismissed on 05.03.2003 and Kaivalyanathan was made to believe that O.S.No.93 of 2003 was still pending and with that knowledge he died on 21.08.2004. It is also admitted that during the life time of Kaivalyanathan, he was not satisfied with his Advocate, Mr.S.P.S.Sivasubramanian and therefore, he changed his Advocate and engaged, Mr.Santharam Natarajan, who also filed vakalath for Kaivalyanathan in O.S.No. 92 of 2000 in September 2003 and thereafter, the Advocate Mr.S.P.S.Sivasubramanian had nothing to do with the cases of Kaivalyanathan. From September 2003, the new Advocate Mr.Santharam Natarajan was looking after the case in O.S.No.92 of 2000. Thereafter only the respondents 1 to 4 came to know that the previous Advocate, Mr.S.P.S.Sivasubramanian also appeared for the defendants in O.S.Nos.92, 93 of 2000 and the plaintiff in O.S.No.637 of 1999 and realised that fraud has been practised on them by the said Advocate. Thereafter, the respondents 1 to 4 came to know that O.S.No.93 of 2000 was dismissed on 05.03.2003 and applied for certified copies of decree and judgment for filing the appeal and there was a delay in filing the appeal and filed the appeal along with the application to condone the delay in I.A.No.349 of 2005 in unregistered A.S. /2005 on the file of the Sub Court, Tirunelveli, to condone the delay of 855 days in filing the appeal and the learned Sub Judge, dismissed the application for condonation of delay holding that the delay has not been properly explained and the reasons stated by the respondents 1 to 4 herein for condonation of delay cannot be accepted.
5.Aggrieved by the same, the respondents 1 to 4 filed C.R.P.No.665 of 2006 on the file of this Court and this Court, by order dated 21.04.2007 set aside the order of the lower Court made in I.A.No.349 of 2005 in un-numbered A.S.No /2005, dated 28.04.2006 and remanded the matter to the lower Court for conducting detailed enquiry with regard to the allegations made in the supplementary affidavit filed by the then revision petitioner in C.r.P.No.665 of 2006 before the High Court and also on the basis of the documents filed in the Civil Revision Petition, and the parties were permitted to let in evidence both oral and documentary.
6.It is admitted that during the hearing of CRP.No.665 of 2006 the revision petitioner therein namely the respondents 1 to 4 herein, filed a supporting affidavit before this Court stating the fraud played by Mr.S.P.S.Sivasubramanian, Advocate and pleaded that by reason of the said fraud committed by the said Advocate, they were not able to file the appeal in time and that was taken into consideration by this Court, and remanded the matter for consideration in the light of the allegations made by the respondents 1 to 5 about the role of the Advocate played in that suits. Thereafter, the matter was heard by the learned Principal Sub Judge, Tirunelveli and the 2nd respondent herein examined himself as PW1 and the revision petitioner has not let in any evidence and on the side of the respondents 1 to 4, 16 documents were marked. The learned Sub Judge, after considering the oral and documentary evidence, held that the delay in filing the appeal was not due to any fraud committed by the Advocate, Mr.S.P.S.Sivasubramanian, as he was changed by Thiru.Kaivalyanathan on 10.09.2003 in O.S.No.92 of 2000. Nevertheless, the learned Sub Judge allowed the application accepting the reasons stated by the respondents 1 to 4 holding that the Kaivalyanathan was not well and he died on 21.08.2004 and thereafter, the respondents 1 to 4 enquired about the legal representatives of the 1st respondent, Gomathi and after much difficulty, they were able to get the particulars and the connected O.S.No.92 of 2000 was pending at that time and being a suit for declaration the plaintiffs must be given a chance to establish the case and on those grounds allowed the revision, by order, dated 30.01.2008. In that said order, the learned Judge has also given a specific finding that the respondents 1 to 4 have not proved that Mr.S.P.S.Sivasubramanian, Advocate, has played any fraud on Kaivalyanathan. Aggrieved by the same, the present revision petition is filed by the 3rd respondent in O.S.No.93 of 2000.
7.Mr.S.Meenakshi Sundaram, the learned counsel appearing for the petitioner submitted that this court while remanding the CRP.No.665 of 2006 has specifically held that the revision is remanded only for the purpose of conducting the enquiry on the basis of the supplementary affidavit filed before the High Court stating the allegations of fraud against the Advocate, Thiru.S.P.S.Sivasubramanian. He further submitted that it was contended by the respondents 1 to 4 before this Court in CRP.No.665 of 2006 that they were not able to state the various acts of fraud committed by the Advocate Thiru.S.P.S.Sivasubramanian, while conducting the case O.S.No.93 of 2000 and therefore, only for the purpose of finding out whether any fraud has been played by the Advocate Mr.S.P.S.Sivasubramanian, the matter was remanded to lower Court and that was made known by the finding of this Court in that revision. He also brought to my notice the findings of this Court made in para 3 to 5 in the order in CRP.No..665 of 2006 holding that as the respondents 1 to 4 have alleged that they have unearthed new facts after the dismissal of I.A.No.349 of 2005 and these new facts would clearly establish the fraud and collusion of the learned counsel, who appeared for the deceased, Mr.Kaivalyanathan before the lower Court and only for the purpose of considering those facts, this Court has passed the order remitting back the application to the lower court for fresh consideration in the light of the allegations made in the fresh affidavit and new set of facts and documents filed by the respondents 1 to 4. This Court further held in that order that there are serious allegations of fraud and collusion made out in the affidavit and levelled against the persons concerned and if proved, it will have serious repercussions and the petitioners should not be allowed to suffer for the fraud, if proved, committed on them.
8.Therefore, Mr.S.Meenakshi Sundaram, the learned counsel appearing for the petitioner submitted that this Court has remitted back the matter to the lower Court only for the purpose of finding out whether any fraud or collusion has been committed by the earlier counsel, who appeared for the deceased, Mr.Kaivalyanathan and in the absence of any finding of fraud or collusion, then the earlier order of the Sub Judge, Tirunelveli, dismissing the application to condone the delay has to be confirmed and the lower court after the remand, having found that the respondents 1 to 4, have not proved any fraud or collusion committed by the earlier Advocate, ought not to have allowed the application on the ground that the delay was properly explained and the reasons stated by the lower court that having regard to the nature of relief prayed in that suit and also having regard to the fact that the deceased plaintiff, Kaivalyanathan, died and the legal representatives had difficulties of finding out the legal heirs of the first defendant, Gomathi and therefore, the delay was genuine and can be condoned, cannot be accepted.
9.According to the learned counsel appearing for the revision petitioner that the lower Court had committed an error in allowing the application, which is against the order of this Court made in CRP.No.665 of 2006 and once the lower Court has given a finding that the respondents 1 to 4 have not proved the allegations of fraud or collusion against the earlier counsel ought to have confirmed the earlier order dismissing the application for condonation of delay.
10.Per contra, Mr.Santharaman Natarajan, the learned counsel appearing for the respondents 1 to 4 contended that various facts, which were placed before the lower Court would amply prove that the fraud has been committed by the earlier counsel and the deceased, Mr.Kaivalyanathan was misled by the earlier counsel and the earlier counsel also appeared for the defendants 1 and 2 in O.S.Nos. 92 and 93 of 2000 and also for the plaintiff in O.S.No.637 of 1999 and by producing the documents, which were filed in O.S.No.93 of 2000 and O.S.No.637 of 1999, fraud has been established and therefore, the lower Court was right in condoning the delay.
11.In this case, as stated supra, there are certain facts, which are not controverted or denied by both parties and were admitted.
12.O.S.No.637 of 1999 was filed by Tmt.Gomathi, represented by the Power of Agent, Thiru. Vellai Durai against one Mohamed Nasar and that suit was filed on 05.11.1999 and the Advocate, Mr.S.P.S.Sivasubramanian filed the suit on behalf of Tmt.Gomathi, represented by the power Agent, Vellai Durai. The subject matter of the property in that suit is in Survey No.545/2A, of an extent of 49 cents, out of 97 cents in the village east Keelveeragavapuram village, Tirinelveli District, Having appeared for the plaintiffs R.Gomathi, represented by P.Vellai Durai, power of Agent in that suit, the said Advocate, Mr.S.P.S.Sivasubramanian also filed O.S.No.92 of 2000 and 93 of 2000 on behalf of Thiru. Kaivalyanathan and in those two suits R.Gomathi and Vellaidurai, who are the plaintiffs in O.S.No.637 of 1999 were defendants 1 and 2. The subject matter of O.S.No.92 of 2000 is in Survey No.515/3B, of an extent of 52 cents in eastern Keelveeragapuram, Palayamkottai Taluk and the subject matter of O.S. No.93 of 2000 is Survey No.518/2, of extent of 96 cents. Though in the supporting affidavit various allegations of fraud were made against the Advocate, in my opinion, for the disposal of this application, there is no need to go into the allegations as we are concerned only with the conduct of the respondents and late Kaivelyanathan after the dismissal of the suit on 05.03.2003.
13.Admittedly, O.S.No.93 of 2000 was dismissed on 05.03.2003 and the defendants 1 and 2 were set ex-parte and the suit was contested by the 3rd respondent, who is the present revision petitioner herein and on the side of the plaintiffs, eight documents were marked and on the side of the defendants, 7 documents were marked and the plaintiff was examined as P.W.1. Therefore, on the basis of the pleadings and evidence, the learned Principal District Munsif, dismissed the suit, by judgment and decree, dated 05.03.2003. At that time O.S.No.92 of 2000 was not disposed. Thereafter, on 10.09.2003, the deceased, Thiru.Kaivalyanathan changed his counsel in O.S.No.92 of 2000 and Mr.Shantharam Natarajan had entered appearance for the plaintiff viz., the deceased, Mr.Kaivalyanathan. The plaintiff died on 21.08.2004. Therefore, even assuming that the deceased, Mr.Kaivalyanathan and the legal heirs of the deceased, Mr.Kaivalyanathan were under the bonafide impression that the suit O.S.No.93 of 2000 was not disposed of on 10.09.2003, when Mr.Kaivalyanathan, changed his counsel in the suit O.S.No.92 of 2000, he would have also changed his counsel for the suit O.S.No.93 of 2000 had he been under the impression that O.S.No.93 of 2000 was not disposed and he would have also informed his new counsel about the suit O.S.No.93 of 2000 and the new counsel would have made enquiries about the O.S.No.93 of 2000. Therefore, on 10.09.2003, when Mr.Kaivalyanathan changed his counsel in O.S.No.92 of 2000 he must be having knowledge about the dismissal of the O.S.No.93 of 2000 on 05.03.2003.
14.As stated supra, if he had no knowledge about the dismissal, as now contended by the respondents 1 to 4, he would have informed about the suit O.S.No.93 of 2000 to the new counsel and the new counsel also would have made some enquiries about the O.S.No.93 of 2000 and informed the Mr.Kaivalyanathan about the dismissal of O.s.No.93 of 2000.
15.It is admitted that Mr.Kaivalyanathan died on 21.08.2004 i.e. he was alive for a period of 11 months from the date of change of his counsel in O.S.No.92 of 2000. During those periods, no attempt was made by Mr.Kaivalyanathan, to enquire about the fate of O.S.No.93 of 2000. Therefore, in so far as the condonation of delay in filing the appeal is concerned, there is no need to go into the alleged fraud played by the earlier counsel of Mr.Kaivalyanathan, because even 11 months prior to the death of Mr.Kaivalyanathan, the said Mr.Kaivalyanathan, changed his counsel on 10.09.2003.. In a normal circumstances, he would have either informed the new counsel about the pendency of the O.S. No.93 of 2000, if he was under the impression that O.S.No.93 of 2000 was not disposed of or informed the new counsel about the steps to be taken for filing the appeal. The conduct of the deceased, Mr. Kaivalyanathan in not informing anything about the O.S.No.93 of 2000 to the new counsel would lead only to an inference that he was aware of the decree passed in O.S.No.93 of 2000 on 05.03.2003 by which the suit was dismissed and nevertheless steps were not taken by him to file the appeal.
16.Therefore, the delay from 05.03.2003 to 21.08.2004 the date of death of Kaivalyanathan is crucial and there is no explanation on the side of the respondents 1 to 4 for condoning the delay for those period. The delay caused thereafter viz., after the death of Mr.Kaivalyanathan has been explained by the respondents 1 to 4 as they have to trace the legal heirs of the first respondent, Tmt.Gomathi, till the death of the 1st respondent .But so far as the period during which Mr.Kaivalyanathan was alive, no proper explanation has been stated by the respondents 1 to 4, except the fact that the earlier Advocate has committed fraud and collusion to the defendants 1 and 2 in Original Suit No.93 of 2000.
17.Therefore, the alleged fraud or collusion played by the earlier advocate has no relevance for deciding this revision as the earlier advocate was changed on 10.09.2003 and Mr.Kaivelyanathan was alive till 21.08.2004 and the appeal was filed in September 2005 nearly 2 years after the change of counsel by Mr.Kaivalyanathan. In this connection, it is relevant to see the evidence of Mr.Swaminathan, S/o.Kaivalyanathan given in I.A.No.349 of 2005, wherein he has admitted that his father was employed and was residing at Chennai and after retirement he came to Tirunelveli. He also admitted in the cross examination that during the trial in Original Suit No.92 and 93 of 2000, he came to Tirunelveli and accompanied his father while conducting the two suits and he was also aware that the Original Suit Nos. 92 and 93 of 2000 was conducted by his father and Mr.S.P.S.Sivasubramanian was their Advocate. He also admitted that after the death of his father, he enquired Mr.Santharam Natarajan, who was engaged subsequently. Therefore, if the 2nd respondent had contacted Mr.Santharam Nataranan, the new Advocate, definitely he would have enquired about the Original Suit No.93 of 2000 and he would have been informed about the dismissal of Original Suit No.93 of 2000 by his new advocate. Therefore, from these facts, I am of the opinion that the deceased Mr.Kaivalyanathan and his son must have been aware of the dismissal of the Original Suit No.93 of 2000 on 05.03.2003 and despite the same, no steps have been taken by them for filing the appeal against the said judgment and decree for nearly 2 . years. As stated supra, the reason for not filing the appeal, till the date of death of Mr.Kaivalyanathan was not explained and it can not be stated that Mr.Kaivalyanathan was not aware of the judgment and decree passed in Original Suit No.93 of 2000.
18.According to me, after the change of counsel in Original Suit No.92 of 2000 dated 10.09.2003, Mr.Kaivalyanathan must have been aware of the fate of Original Suit No.93 of 2000 which was dismissed on merits on 05.03.2003 and knowing fully well about the fact, he has not chosen to file a appeal for more than 15 months till his death and the 2nd respondent, who was also aware about the pendency of the suit O.S.No.92 of 2000 must be also aware about the dismissal of the suit on 05.03.2003. As admitted by him, he has contacted the new advocate and enquired about the O.S.No.92 of 2000 and also filed the first appeal against the dismissal of O.S. No.92 of 2000 and thereafter, filed the the 2nd appeal in the High Court and having regard to all these facts, I come to the conclusion that both the deceased Kaivalyanathan and the respondents were aware of the dismissal of the Original Suit No.93 of 2000 even on 05.03.2003 and for reasons best known to them they did not take any action by filing appeal and kept quite for more than 2 . years.
19.The lower Court has stated that the reasons stated by the respondents 1 to 4 for the delay in filing the appeal viz.,the first respondent was not well from the date of the death of Mr.Kaivalyanathan and they have experienced difficulty in finding out the legal heirs of the deceased first defendant can be accepted. The lower court has further held that in the interest of justice Original Suit No.93 of 2000 must also be allowed to contest and therefore, held that the delay can be condoned. As stated supra there is no explanation for the delay in taking steps to file the appeal till the of death of by Mr.Kaivalyanathan. Further, the lower court was under the impression that the Original Suit No.93 of 2000 was allowed to be dismissed for default and for giving a better chance to the parties, the delay can be condoned.
20.As stated supra,Mr.Kaivalyanathan gave evidence and marked documents in Original Suit No.93 of 2000 and after hot contest only the suit was dismissed on merits. It is further admitted that the Original Suit No.92 of 2000 was also dismissed and the first appeal filed by them was also dismissed and the respondents 1 to 4 have filed 2nd appeal before this Court against the judgment and decree in O.S.No.92 of 2000. Therefore, these facts would prove that the respondents 1 to 4 are well aware of the legal proceedings, despite the fact that they have not chosen to file any appeal against the judgment and decree passed in O.S.No.93 of 2000.
21.The learned counsel appearing for the petitioner, Mr.Meenakshi Sundram submitted that following the judgment reported in 2008(5) SCC 651 and 2007(4) CTC page 506.
22.In the judgment reported in 2008(5) SCC 651, in the case of Union Bank of India, Oppanakara Street, Coimbatore-641 001 vs. K.R.Jewellers and others it was held that mere allegation of negligence against counsel is not a ground for condoning the delay and the parties have also equal responsibility as that of the counsel as to follow up the matter . In that reported judgement, though the appeal was filed in time, the appeal papers are returned to rectify certain defects and after the delay of 287 days the papers were represented with the application to condone the delay and that was not accepted by the Division Bench of this Honourable Court. In this case, I have held that Mr.Kaivalyanathan, who was examined as P.W.1 before the trial court was aware of the decree and judgment passed in Original Suit No.93 of 2000 and no steps were taken by him till his death and even assuming that the earlier advocate have played a fraud, after the change of counsel for nearly 11 months, no steps were taken by Mr.Kaivalyanathan and thereafter, by his son for filing the appeal and that would prove that they were not interested in filing the appeal.
23.In the judgment reported in 2007(4) CTC page 506, in the case of Sivakumar and another vs. R.Sengodan, after the defendants appeared through counsel, they did not file the statement and therefore, they were set ex- parte and after the delay of 656 days have filed the application to set aside the ex- parte order. In that case, it was held that having filed the vakalath and entered appearance through counsel, the parties must be informed about the proceedings. In that case, also it was stated by the petitioners that their counsel, did not intimate about the date of adjournment and they shifted the house and the date of adjournment was not brought to the notice of the counsel. Negativing their contention, this court has held in that case that the conduct shows the utter carelessness on the side of the petitioners to take such a time of 656 days. The Court has further held that in a case of condonation of delay, the court must take a liberal view, but at the same time, as far as the condonation of delay is concerned, the court should not do so on exercising equity. If it is done it would be nothing but extension of limitation what is not available to a party under an enactment. Therefore, the above two judgments would prove that the fraud alleged to have been practised by the lower court counsel on the parties may not be a good reason to condone the delay,. In this case, the parties were aware about the proceedings and therefore, it cannot be stated that they were not aware of the decree passed in Original Suit No.93 of 2000.
24.The learned counsel appearing for the respondents 1 to 4 have brought to my notice the Division Bench of this Honourable Court reported in 2008(2) LW 330 and 2008(2) MLJ 833, 1998(7)SCC 123 and in all those judgments the Honourable Supreme Court and our High court has held that it is a discretion of the court and once that discretion is exercised by the lower court the appellate court should not normally disturb that. In the reported judgment in 1998(7)SCC 123 in the case of N.Balakrishnan vs. M.Krishnamurthy case, it has been held "Condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation where in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory.
"Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court... The reason for such a different stance is thus:
The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause.
In every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation.
A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This court has held that the words " sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shkuntala Devi Jain v. Kuntal Kumari and State of W.B. v Administrator, Howrah Municipality."
25.In the judgment reported in 2008(5) MLJ 585, Management of Proteck Circuits and Systems Private Limited, Chennai vs. Controlling Authority under the Minimum Wages Act/Deputy Commissioner of Labour-II, Chennai and another the same principle has been reiterated.
26. Following the 1998(7)SCC 123 and following other judgments of the Honourable Supreme Court, this court has held in the case of Ravi Enterprises, rep. by its Partner, 2008(2) MLJ page 833 that the courts should not prefer to adopt a pedantic approach and on the other hand, a pragmatic approach has to be made to deliver substantial justice overriding technical considerations as far as the present case is concerned. Furthermore, a party does not stand to benefit by adopting delay. Per contra, he runs a grave risk. It cannot be gainsaid that judiciary is respected because it is capable of removing injustice and is expected to do so.
27.The judgment reported in 2007(5) MLJ 932 in the case of Arun Alexander Lakshman, Proprietor, Alraj Builders, Chennai and another vs. A.P.Vedavalli laid down the guidelines in considering the application for under Section 5 of the Limitation Act as follows:
"To turn up the legal position-(1) the word "sufficient cause" should receive liberal construction to do substantial justice; (2) what is "sufficient cause" is a question of fact in a given circumstances of the case (3) it is axiomatic that 'condonation' of delay is discretion of the court (4) length of delay is no matter, but acceptability of the explanation is the only criterion; (5) once the court accepts the explanation as 'sufficient', it is the result of positive exercise of discretion and normally the superior court should not disturb in such finding unless the discretion was exercised on wholly untenable or perverse; (6) The rules of limitation are not meant to destroy the right of the parters but they are meant to see that the parties do not resort to dilatory tactics to seek their remedy promptly. (7) Unless a party shows that he/she is put to manifest injustice or hardship, the discretion exercised by the the lower is not liable to be revised. (8) If the explanation does not smack of Mala fides or it is put-forth as part of a dilatory strategy the court must show utmost consideration to the suitor. (9) If the delay was occasioned by party deliberately to gain time, then the court should lean against acceptance of the explanation and while condoning the delay, the court should not forget the opposite party altogether.
28.The same principles were also reiterated in the judgment reported in 2008(2) LW 330. Though I have stated that the delay has not been properly explained by the petitioner, having regard to the fact that the Honourable Supreme Court held in the judgement reported in 1998(7) SCC 123 when the trial court in the exercise of its discretion condoned the delay, the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. Further being a suit for declaration and for injunction the parties must be given liberty to establish the right in the first appeal and following the judgment of the Honourable Supreme Court and the Division Bench judgment of our Honourable High Court I do not want to interfere with the order of the lower court in the matter of exercising the discretion and hence the revision is dismissed.
29.The revision petitioner also filed W.P.(MD)No.124 of 2009 challenging the order of the District Revenue Officer, Tirunelveli, dated 26.12.2008, by which the District Revenue Officer cancelled the patta granted in favour of the petitioner in the writ petition and ordered to issue patta in favour of the respondents 1 to 4. In the said order passed by the District Revenue Officer, he has given a finding that the patta, which was granted originally in favour of the petitioner in Patta No.819 was found to be not genuine. Further the District Revenue Officer has held that originally property in Survey No.518, of an extent of 1.92 acres was compromised in patta No.819 and by the proceedings of the Tasildhar in 8 A 28/1401 dated 30.03.1992 survey No.518 was sub-divided and 518/1 of an extent of 96 cents was issued in the name of the K.P.Hari Krishnan and P.S.Ramasubbu Iyer and retained the patta No.819 for that sub-division and the remaining extent was given survey No.518/2 of an extent of 96 cents and it was included in patta No.1409 and the name of Mr.Kaivalyanathan was included in patta No.1409. It is seen from the said order that Gomathi was the legal heir of P.S.Ramasubbu Iyer and she gave power to Vellai Durai and from Vellaidurai, the petitioner in this writ petition, purchased the property.
30.Therefore, it is seen from the sale deed, dated 16.03.1998, document No.2302, M.S.Shanmugavel, the petitioner in the writ petition had purchased eastern 96 cents in Survey No.518, out of the total extent of 1 acres 92 cents. As per the proceedings of the Tasildhar, dated 30.03.1992 made in TTR.448/91-92, survey No.518 was sub-divided into 518/1 & 2 and 518/1 of extent of 96 cents was the land belonged to the K.P.Hari Krishnan and P.S.Ramasubbu Iyer and hence, the petitioner M.S.Shanmugavel must have purchased the property situate in Survey No.518/1 and 96 cents from the legal heir of P.S.Ramasubbu Iyer, whereas Kaivalyanathan was the owner of Survey No.518/2 and that was included in the patta No.1409. Therefore, the District Revenue Officer held that the deletion of name of Kaivalyanathan in patta No.1409 is illegal and included the respondents 1 to 4 in patta No.1409.
31.According to me, the District Revenue Officer proceeded on the basis of the Sub Division ordered by the Thasildhar by his proceedings in TTR448/91-92 dated 30.3.92 and it was passed behind the back of the writ petitioner and without conducting enquiry. Therefore, the District Revenue Officer should not have passed the order setting aside the order of the Revenue Divisional Officer. At the time of passing the order, the suit O.S.No.93 of 2000 was dismissed and the appeal preferred by the respondents 1 to 4 was not numbered. Hence the District Revenue Officer committed an error in granting the patta in favour of the respondents and hence, it is liable to be set aside and it is set aside. However, it is made clear that as on date, the suit filed by the Kaivalyanathan to declare his right in Original Suit No.93 of 2000 is dismissed, the right of Kalvalyanathan in respect that property has to be established by the competent Civil Court in the first appeal. Therefore, in respect of Survey No.518/2, of an extent of 96 cents in east Keelveeragapuram village, Palayamkottai Taluk, Tirunelveli District till the title to that property is established in a competent civil Court, the respondents 1 to 4 cannot claim any right to that property. It is also made clear that I have not decided the title of Kaivalyanathan to the suit property in Survey No.518/2 of an extent of 96 cents and that right has to be established only in the suit Original Suit No.93 of 2000. Therefore, till such right is established, the respondents 1 to 4 cannot claim any right in that property and the right is subject to the final decision rendered in Original Suit No.93 of 2000.
32.Further the Revenue officials are also bound by the decision of the civil court. Similarly the writ petitioner cannot also claim any right by virtue of the Revenue Divisional Officer order dated 24.01.2006. As the Revenue Authorities are bound by the Civil court decree, after a final decision is arrived at in the O.S.No.93 of 2000, the Revenue authorities shall issue patta to the proper person as declared by the civil court. The first appellate court, therefore, directed to dispose of the first appeal without being influenced of any of the observations made in the order passed in Civil Revision Petition or the order passed in the writ petition and the first appellate court is directed to dispose of the matter within a period eight weeks from the date of the receipt of the copy of this orders.
33.Hence, the C.R.P.(MD)No.1043 of 2008 is dismissed and consequently, connected Miscellaneous Petitions are also dismissed and the Writ Petition (MD)No.124 of 2009 is disposed of as stated above. Consequently,connected Miscellaneous Petition is closed. The Registry is directed to send all the papers to the lower court at the earliest.
er To, The Principal Sub Judge, Tirunelveli.