U RAMA RAO Vs. U NAGENDRA RAO

JUDGEMENT

(1.) The petitioner is the appellant and the 1st defendant in OS.No.3159/1999 on the file of the Court of the XII Assistant City Civil Judge, Chennai. The 1st respondent / plaintiff had filed the above suit partition to divide the suit A and B Schedule Properties into four equal shares and allot one such share to him with a further direction to pay mense profit at the rate of Rs.36,000/- from 01.03.1996 to 28.02.1999 and also for rendition of accounts and other consequential reliefs and the suit was contested and a preliminary decree dated 18.08.2003 was granted in favour fo the 1st respondent / plaintiff.

(2.) The 1st defendant/petitioner/appellant aggrieved by the decreeing of the suit, filed AS.No.356/2007 on the file of the Court of the III Additional City Civil Judge, Chennai, and it was also dismissed vide judgment and decree dated 26.04.2011. Challenging the legality of the same, the petitioner / appellant has filed the present Second Appeal on 22.12.2014 and along with the Appeal Memorandum, filed MP.No.1/2015 [present petition] for condonation of delay of 1159 days in filing the appeal.

(3.) The petitioner/1st defendant/appellant, in the affidavit filed in support of the Miscellaneous Petition would aver among other things, that the Lower Appellate Court has delivered the judgment on 26.04.2011 and his counsel who was appearing for him in the appeal suit, informed the petitioner/1st defendant/appellant that he has succeeded in the appeal and he need not worry about the proceedings any more. Though the petitioner was repeatedly contacting his counsel to furnish the copy of the judgment, it was not furnished on the pretext that copies were yet to be made ready. It is further averred that the 1st respondent / plaintiff moved an application for appointment of an Advocate Commissioner in the application to pass final decree and once again, the petitioner/1st defendant enquired with the Lower Appellate Court counsel and he assured him that the applications are not maintainable in the light of the fact that he has succeeded in the appeal suit and having reposed complete faith, the petitioner/1st defendant/appellant did not take any action and would further aver that during July and August 2013, he was hospitalised at Sri Ramachandra Medical College and Hospital, Porur, for continuous high fever, vomiting and fits and he was unconscious due to age factor and mental agony and the 1st respondent / Plaintiff herein who is happened to be his son through the first wife, did not even visit him in the hospital. The petitioner/1st defendant/appellant was shocked to receive a notice dated 02.06.2014 from the learned counsel appearing for the 1st respondent / plaintiff in IA.No.3115/2014 in OS.No.3159/1999, fixing the date of hearing on 11.06.2014 and once again, the petitioner/1st defendant contacted his counsel and since his response was not satisfactory, he approached his well wishers and friends and also took opinion from other counsel and then only, he came to know that he lost before the Lower Appellate Court also and after verifying the records, took steps to get the certified copy of the judgment and decree and the said copy was furnished to him on 28.11.2014 and he immediately filed the Second Appeal on 22.12.2014 and in the light of the reasons assigned above, which are beyond his control, prays for condonation of delay of 1159 days in filing the Second Appeal.