MOLUKKA NAIDU Vs. R V PALANIAPPAN

JUDGEMENT

(1.) THE respondent filed O.S. No. 187 of 1987 on the file of Sub Court, Namakkal for partition and separate possession of 1/6th share. THE petitioners were set ex parte on 18-12-1988 and a decree was passed on that date. THE petitioners filed I.A. No. 247 of 1989 for condonation of delay of four days in seeking to set aside the ex parte decree and I.A. No. 248 of 1989 for setting aside the ex parte decree. THE petitioners were directed to pay a sum of Rs. 150/- by way of costs as condition for setting aside the ex parte decree. Time was granted till 9-9-1991. THE petitioners did not pay the costs and the application was dismissed on 19-11-1991. It is the said order dated 19-11-1991 which is sought to be challenged in this revision petition.

(2.) THE revision petition was presented only on 11-12-1992. Before going into the merits of the application for condonation of delay of 292 days in filing the revision petition, a preliminary objection is raised by learned counsel for the respondent. He contends that this application for condonation of delay in filing the revision petition should be dismissed in limine. According to him, the petitioners applied for certified copies of fair and decretal orders of the Court below in I.A. No. 247 of 1989 only on 30-10-1992, which is beyond the period of 90 days from the date of order i.e. 19-11-1991. It is contended by him that if a party applies for certified copies or printed copies of the order challenged in appeal or revision beyond the period of 90 days, he will not be entitled to file an application for condonation of delay in the appellate Court or in the revisional Court in filing the said appeal or revision. According to him, S. 5 of the Limitation Act, 1963 can be invoked only by a person who applies for certified copies or printed copies of the orders within the time prescribed for preferring the appeal or revision. 2 -A. Reliance is placed by learned counsel for the respondent, on the judgment of a Division Bench of this Court in THE Land Acquisition Officer v. Kannan Piliai and others (1992-2-L.W. 28). In that case, there was a delay of 640 days in filing the appeal against the judgment and decree in L.A.O.P. No. 29 of 1981 on the file of Sub Court, Salem. In the affidavit filed in support of the petition originally, there was no explanation at all as to why the application for copies was made after a period of about eight months from the date of judgment and decree viz. 7.12.1984. An opportunity was given to counsel for the appellant to file an additional affidavit. In the additional affidavit an explanation was attempted, but the Bench held that the said explanation was wholly unacceptable. It was also held by the Bench that the averments made in the additional affidavit were not substantiated by production of relevant documents. THE Bench look the view that the delay of 640 days has not been explained at all by the appellant and consequently dismissed the application under S. 5 of the Limitation Act, 1963. In the course of their judgment, the Bench referred to a judgment of this Court in Ramalingam Pillai v. Arunachalam Piliai ((1988) II M.L.J. 139) which had extracted the following passage from the judgment in Parthasarathy v. State of A.P. (A.I.R. 1966 S.C. 38):?

(3.) IN this case, the delay is sought to be explained by the petitioner that after the order was passed by the trial Court, he was advised that an application should be filed in the trial Court itself for extension of time to pay the costs and to set aside the order dated 19-11-1991. According to him, such an application was filed, but it was not numbered and it was returned on 18-8-1992 as not maintainable. According to the affidavit, he filed for certified copies of fair and decretal order an application on 30- 10-1992 and the copies were delivered on 5-11-1992. The revision was presented in this Court on 11-11-1992. The above explanation is wholly unsatisfactory. The affidavit of the petitioner has carefully and deliberately omitted to disclose the date on which the application was filed in the trial Court for setting aside the order dated 19-11-1991 and extend the time for payment of costs. The copies of the affidavit and the petition have been included in the typed set by the petitioner. They disclose that such an application was filed only on 3-8-1992. There is no explanation whatever as to why the petitioner did not file the application in the trial Court between 19-11-1991 and 3-8-1992. The entire period remains unexplained. Again, there is no explanation for the delay between 18-8-1992 and 30-10-1992. As per the judgment of the Division Bench, the period between 30-10-1992 and 5-11-1992 cannot be excluded. IN the circumstances, there is no explanation whatever for the entire delay of 292 days. The delay is inordinate and in the absence of valid explanation the petitioner is not entitled to get a relief in this Court.