LAKSHMIKUTTY PANICKATHI Vs. BHARGAVI PANICKATHI

JUDGEMENT

(1.) Suit was dismissed for default. Application under O.9 R.9 was filed by the plaintiff 54 days out of time. Therefore an application under S.5 of the Limitation Act was also filed. Application for condonation of delay was dismissed. For that reason the application under O.9 R.9 was also dismissed. Plaintiff filed C. M. Appeal against the order rejecting the application under O.9 R.9. In that appeal he took grounds against rejection of the delay petition also. District Judge allowed the appeal. Second defendant seeks to revise that judgment.

(2.) There was serious challenge against the decision of the District Judge condoning the delay. But under S.115 CPC the power of the High Court is limited to see whether there has been assumption of jurisdiction when it did not exist; or refusal to exercise jurisdiction when it existed; or in the exercise of jurisdiction there was material irregularity or illegality. If none of these grounds are there and what is involved is only decision on a question of fact by appreciation of evidence, the High Court may not be justified in revision in interfering with that conclusion even if it is of the view that a different conclusion is possible. Whether or not the delay has to be condoned is a question on which the District Judge was entitled to come to a conclusion on appreciation of the facts and evidence and he did so without incurring the risk of any jurisdictional error, irregularity or illegality. I do not think that there is any scope for interference.

(3.) If so, the limited ground en which the decision of the District Judge is to be considered is on the touch atone whether he had jurisdiction to entertain and dispose of the appeal. The argument was that the order of the Munisiff that had to be challenged was the one refusing to condone the delay which is not appealable and the order dismissing the application under O.9 R.9 was only consequential on the refusal to condone the delay and it will not come within the ambit of O.43 rule (1)(c) of the Code of Civil Procedure. I do not think I will be able to agree.