This petition has been filed by the petitioner seeking for condonation of delay of 371 days in filing the appeal before the Lower Court.
2.The averments made in the petition filed by the application to condone the delay would run as follows:- The suit in O.S.No.7154/2005 was filed by the 1st respondent seeking for declaration and recovery of the possession of the suit property and for other reliefs. The petitioner resisted the suit on the ground that the suit property was an ancestral property and her husband became the owner of the property by virtue of the partition took place between him and his brother and the husband of the petitioner executed a settlement deed in favour of the respondents 2 & 3, who are the daughters, and they were in possession and enjoyment of the same as true owners. But the lower court, on an erroneous appreciation of both law and facts, had decreed the suit. He would further submit that the petitioner was actually in physical possession on behalf of the respondents 2 & 3. By virtue of the said Judgment and Decree passed by the Lower Court the petitioner was also aggrieved and her daughters, respondents 2 & 3 assured her to file an appeal against the Judgment and Decree by including her as one of the appellants. But, they did not jointly filed the appeal. The petitioner was under the bonafide impression that an appeal has been filed on her behalf also, but it was not done by the respondents 2 & 3. Therefore, the petitioner has filed a separate appeal after obtaining certified copy of Judgment and Decree in an application filed by her on 14.10.2008 and the copies were made ready and delivered on 20.10.2008 and therefore, the delay of 371 days were caused in preferring the appeal. He would request the court that the petitioner is not supported by anybody, but she is in possession and enjoyment of the suit property on behalf of the respondents 2 & 3 and if the delay is not condoned and appeal is not admitted, irreparable loss will be caused to the petitioner. He would also submit that there is no willful delay on part of the petitioner in taking steps to file the appeal against the Judgment and Decree passed by the Lower Court. Therefore, he would request the court to condone the delay of 371 days.
3.The 1st respondent filed a counter affidavit contending as follows:- The 3rd defendant/petitioner herein falsely claims that she was having right of possession over the suit property and actually there was no right for the 3rd defendant/petitioner in the suit property and she was not aggrieved by the decree passed by the Lower Court and she has no locus standi to file any appeal. He would rely upon the Judgment of this Court reported in AIR 2003 Supreme Court 1989 between Banarsi and others Vs. Ram Phal. He would further submit in his argument that the explanation offered by the petitioner is not sufficient to condone the delay of 371 days. The plea of the petitioner that the condonation of the delay should be liberally considered can not be applied to the petitioner, since she was aware of the passing of Judgment and Decree and the blame levelled by her against the respondents 2 & 3 was not shown to be true and therefore there was no bonafide on the part of the petitioner and in such circumstances claim for condonation of delay of 371 days need not be granted.
4.No counter was filed by the respondents 2 & 3. The claim against the 4th respondent was given up.
5.Heard Mr.M.Muthuppan, the learned counsel appearing for the petitioner and Mr.V.Ayyadurai, the learned counsel appearing for the first respondent.
6. The learned counsel for the petitioner would submit in his argument the the suit in O.S.No.7154/2005 was filed by the 1st respondent seeking for declaration and recovery of the possession of the suit property and for other reliefs and the petitioner resisted the suit on the ground that the suit property by virtue of the partition took place between him and his brother and the husband of the petitioner executed a settlement deed in favour of the respondents 2 &3, who are the daughters, and they were in possession and enjoyment of the same as true owners and that the lower court, on an erroneous appreciation of both law and facts, had decreed the suit. The further case would be that the petitioner was actually in physical possession of the suit property on behalf of the respondents 2 & 3 and therefore by virtue of the said judgment and Decree passed by the Lower Court, the petitioner was also aggrieved and her daughters, respondents 2 & 3 assured her to file an appeal against the Judgment and Decree by including her as one of the appellants. But, they did not join the petitioner to file the appeal. The petitioner was under the bonafide impression that an appeal has been filed on her behalf also, but it was not done by the respondents 2 & 3. Therefore, the petitioner has filed a separate appeal after obtaining certified copy of Judgment and Decree in an application filed by her on 14.10.2008 and therefore, the delay of 371 days was caused in preferring the appeal. The learned counsel for the petitioner would request the court that the petitioner is not supported by anybody and she is in possession and enjoyment of the suit property on behalf of the respondents 2 & 3 and if the delay is not condoned and appeal is not admitted, irreparable loss will be caused to the petitioner. The learned counsel for the petitioner would also submit that there is no willful delay on the part of the petitioner in taking steps to file the appeal against the Judgment and Decree passed to the Lower Court. Therefore, he would request the court to condone the delay of 371 days.
7.The learned counsel for the 1st respondent would submit in his argument that the petitioner herein falsely claims that he was having the right of possession over the suit property and actually there was no right for the petitioner/3rd defendant in the suit property and she was not aggrieved by the decree passed by the Lower Court and she has no locus standi to file any appeal. He would rely upon the Judgment of this Court reported in AIR 2003 Supreme Court 1989 between Banarsi and others Vs. Ram Phal, for the preposition that unless a person is prejudicially or adversely affected by the decree, he is not entitled to file an appeal. He would further submit, that the explanation offered by the petitioner is not sufficient to condone the delay of 371 days. The plea of the petitioner that the condonation of the delay should be liberally considered can not be applied to the petitioner, since she was aware of the passing of Judgment and Decree and the blame levelled by her against the respondents 2 & 3 was not shown to be true and therefore there was no bonafide on the part of the petitioner.
8. The learned Counsel for the 1st respondent relied on a Judgement of this Court reported in 2007(3) MLJ 631 between G.Jayaraman Vs. Devarajan in support of his case. Apart from that, he would also place his reliance on a Judgment of this Court reported in 2007(5) MLJ 718 between Sivakumar and Another Vs. R.Sengodan. The learned Counsel for the 1st respondent would also submit in his argument that the petitioner has made several incorrect statements and the petitioner is not entitled to get the delay of 371 days condoned. He would further rely upon a Judgment of the Honourable Apex Court reported in 2009 (2) MLJ 1047 (SC ) between Punklik Jalam Patil vs. Exe.Eng.Jalgaon Medium Project and another to his support. He would, therefore, request the Court that the petitioner, who is aware of passing of the Judgment and decree of the Lower Court, ought to have filed her appeal within time and further, the petitioner has no grievance over the Judgment and Decree and in such circumstances petitioner herself is not entitled to file an appeal as per the dictum of the Honourable Apex Court. Therefore, the condonation of 371 days need not be excused and accordingly, the revision petition may be dismissed.
9. I have given anxious thoughts to the arguments advanced on either side. The suit was decreed against the respondents 2 to 4 and the petitioner. The petitioner was stated to be in physical possession of the suit property, which was settled by her husband in favour of the respondents 2 & 3, their daughters, and therefore, she may be given an opportunity to resist the Judgment and Decree passed against her. Apart from that, the reason alleged by the petitioner would be that the respondents 2 & 3 being their daughters assured her to prefer appeal joining her also as one of the appellants, but they preferred appeal themselves separately in A.S.No.882/2008 before this Court. Therefore, it has become necessary for the petitioner to apply for the certified copies on 14.10.2008 and after obtained the copies were obtained only on 22.07.2009 she presented the appeal, in the meanwhile a delay of 371 days had been caused. According to the submissions of the learned counsel for the 1st respondent, the petitioner as the 3rd defendant have no right over the property and however, she had been added as one of the parties and she was not an aggrieved person and therefore, she is not entitled to present the appeal against the Judgment and Decree.
11.So far as the petitioner's stand is concerned, she is said have been in possession of the suit property on behalf of the respondents 2 & 3, her daughters. The suit was originally filed for declaration and recovery of possession of the suit property showing the respondents 2 to 4 and the petitioner as defendants in the suit. The suit was decreed by the Lower Court and the respondents 2 & 3 have preferred appeal against the said Judgment and Decree. The claim of the petitioner/3rd defendant that she was in possession on behalf of the respondents 2 & 3 (defendants 1 & 2) should have been gone into in the appeal. The judgment of the Honourable Apex Court could be applied only at the time of disposal of the appeal and it is not a stage to go into the merits of the appeal. Coming to the reasons stated by the petitioner that she was promised by the respondents 2 & 3 that she would also be joined as appellants in the appeal preferred by them against the Judgment and Decree of the lower Court, but the respondents 2 & 3 did not do. Therefore, the delay has been caused in getting certified copies of the Judgment and Decree of the lower Court and thereafter, she has preferred the appeal. No doubt the respondents 2 & 3 have filed an appeal against Judgment and Decree in A.S.No.882/2008 and the petitioner is ranked as 2nd respondent in the said appeal. The factum of promise said to have been given by the respondents 2 & 3 should have been established by the petitioner. The correct person to deny the factum of promise said to have been given by the respondents 2 & 3 are the respondents 2 & 3 themselves. They remained silent and they did not deny the said allegation. No doubt the petitioner/3rd defendant was one of the parties to the suit before the Lower Court and is said to be an aggrieved person and is entitled to prefer appeal and this Court can not deny the relief sought for by the petitioner at this stage of condonation of delay. Therefore, the petitioner as the 3rd defendant who was to prefer appeal was not joined by the respondents 2 & 3 who had resisted the suit before the lower Court in common. Therefore, I can see that the reasons stated by the petitioner for not taking steps for preferring appeal can be true. The property was said to have been belonged to the husband of the petitioner. The husband of the petitioner is said to have executed a settlement deed infavour of the respondents 2 & 3, their daughters, and by virtue of the settlement deed, they are stated to be in possession of the suit property. In such circumstances, the petitioner should have been given an opportunity to contest the Judgment and Decree passed by the Lower Court, against them. Therefore, the reasons mentioned in the Judgment that the sufficient cause alleged by the petitioner for condoning the delay are found to have been complied by the petitioner. Therefore, the Judgment of this court referred in 2007(5) MLJ 718 between Sivakumar and Another Vs. R.Sengodan and 2007(3) MLJ 631 between G.Jayaraman Vs. Devarajan are not applicable to this case.
12.Considering the facts and circumstances of this case, this court is of the opinion that the petitioner has putforth acceptable explanation for the condonation of delay of 371 days and therefore, the Judgment as stated by the learned counsel for the respondent made in between 2009 (2) MLJ 1047 (SC ) between Punklik Jalam Patil vs. Exe.Eng.Jalgaon Medium Project and another is also not helpful to the 1st respondent at this stage. Therefore, I am of the opinion that the petitioner has offered correct explanation for the condonation of delay caused in preferring the appeal. Therefore, this Court is inclined to condone the delay of 371 days, but it should be on a condition to pay a sum of Rs.500/- to the Tamil Nadu Mediation and Concillation by the petitioner.
14.Accordingly, the Miscellaneous Petition will be allowed on payment of cost of Rs.500/- by the petitioner to the Tamil Nadu Mediation and Conciliation Centre, Madras within a period of one week from the date of receipt of the copy of the orders, in default to pay the amount the petition shall stand dismissed without any further reference this Court. Accordingly, this Miscellaneous Petition is ordered.
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