BALAKRISHNAN Vs. AYYASAMI

JUDGEMENT

(1.) THIS is an application for excusing the delay in filing a second appeal. The judgment sought to be appealed from was passed by the First Additional Sub-Court, Cuddalore. In that appeal, the petitioner was the respondent. The petitioner was not present in person or by counsel at the time when the appeal was called. Hence the appeal was heard and decided in his absence. The petitioner then filed before the Sub-Court an application under Order 41, rule 21 of the Code of Civil Procedure to set aside the ex parte determination of the appeal. The petitioner explained that at the material time he was suffering from jaundice, and this illness prevented him from appearing at the hearing of the appeal. The Sub-Court was not. however, satisfied with this explanation. It accordingly rejected the petitioner's application. The petitioner filed an appeal from that order to this Court in C.M.A. No. 617 of 198!. That appeal was heard and dismissed. A few days thereafter, the petitioner presented his second appeal in this Court from the ex parte judgment and decree in the appeal. The overall delay in the filing.of the second appeal has been calculated at 285 days.

(2.) IN this petition before me under section 5 of the Limitation Act, learned counsel for the petitioner submits that there was sufficient cause which prevented the petitioner from filing the second appeal within time. He urges that in judging the question of delay as well as the sufficiency of cause for the delay, regard must be paid to the period of time covered by the petitioner's proceedings under Order 41, rule 21, both in the trial Court and in this Court. Learned counsel argues that when the policy of the law is to make allowances for the time taken by a suitor to pursue remedies bona fide believed by him to be appropriate for obtaining the requisite relief, and when provision is specifically made in the Limitation Act under section 14 not to take note of delays occurring in such contingencies, the period of time during which the proceedings under Order 41, rule 21 were pending cannot be counted out against the petitioner while adjudging the real element of delay in the filing of the second appeal. Learned counsel submits that the present case must be regarded as a fortiori because in pursuing the remedy under Order 41, rule 21, the petitioner had something more as an extenuating circumstance than mere bona fides of his party; for, the remedy that he pursued was indubitably available to him under the law, and he was entitled to pursue it without any one's leave. If these facts are taken into consideration, learned counsel pointed out, the delay cannot be put at 285 days, but at the most, 15 days or so. Learned counsel pleaded that some reasonable time would be required for a party to have the second appeal prepared and filed in this Court, and a fortnight in between can hardly be regarded as unreasonable.

(3.) BUT that as it may, the question for decision in this case is whether there was sufficient cause for the petitioner filing the second appeal out of time, having particular regard to the proceedings taken by him under Order 41, rule 21 and the inevitable time-lag they entailed. In my view, the very pendency of those proceedings furnished sufficient cause for the delay in the filing-of the second appeal.