S KADIRVEL Vs. EXECUTIVE ENGINEER

JUDGEMENT

(1.) This revision has been filed by the respondent before the lower appellate Court against the order passed by the lower appellate Court in condoning the delay of 539 days in filing the appeal by the petitioner before the lower appellate Court, against the decreeing of the suit in favour of the respondent before the lower appellate Court. The petitioner herein was the respondent before the first appellant Court and the plaintiff in the suit.

(2.) The revision petitioner herein, as plaintiff, had filed the suit O.S.No.419 of 2003 for permanent injunction restraining the defendants from withholding the payment to be paid to the revision petitioner/plaintiff for the construction of the water tank in Kodukkur Village. The learned trial Judge, after considering the evidence of both sides, had allowed the suit in favour of the plaintiff/revision petitioner. Aggrieved by the Judgment passed by the trial Court, the 2nd defendant has filed an appeal before the first appellate Court with an application viz., I.A.No.583 of 2006 to condone the delay in filing the appeal. The said I.A.No.583 of 2006 was allowed by the first appellate Court, which necessitated the plaintiff to prefer this revision petition.

(3.) In the application to condone the delay the 2nd defendant has pleaded as follows:- The 2nd defendant contested the suit on behalf of the 1st defendant also. The suit was decreed against the defendants by the trial Court on 15.2.2005 granting a mandatory injunction against the defendants not to stop payment to the plaintiff. The copy application to obtain the certified copies of judgment and decree was filed in time and the certified copies were obtained by the defendants on 09.06.2006. The second defendant had applied to his higher authorities for getting permission to file the appeal. Necessary permission was granted to the second defendant after getting the legal opinion to file the appeal. In the mean time, there was a delay of 539 days in filing the appeal. The said delay was only a procedural delay and it was neither willful nor wanton. The defendants have fair chance of success in the appeal. Hence, the defendants requested the Court to condone the delay in filing the appeal.