SHANMUGA SADACHARA SERVAI Vs. THIRUGNANAM SERVAI

JUDGEMENT

(1.) SHANMUGHA Sadachara Servai, the petitioner herein is the plaintiff in O.S.No.31 of 1989 on the file of District Munsif, Kovilpatti. He filed the suit for declaration of title and permanent injunction. After trial, the said suit was dismissed. Though he instructed his lawyer to file an appeal after getting the copies of the judgment and decree, the copy application was not filed in time. Therefore, he engaged some other Lawyer to whom he instructed to file an appeal. In the process of filing the appeal, there was a delay of 94 days. Therefore, the petitioner filed an application in I.A.No.530 of 1991 to condone the said delay under Sec.5 of the Limitation Act. The petitioner examined himself as P.W.1 in the enquiry conducted on this application. The reasons for causing the delay of 94 days were given by P.W.1 in the deposition. He was also cross-examined. After consideration of the materials and submissions of the counsel for both the parties, the court of Subordinate Judge, Tuticorin dismissed the petition on the ground that the details of the dates have not been clearly given either in the petition or in the deposition. This order is being challenged in this revision.

(2.) ACCORDING to the petitioner, after the judgment dated 31.1.1991 was passed by the trial court dismissing the suit, he instructed his erstwhile counsel Mr.Umasankar to apply for the copies of the judgment and decree to file an appeal. But, he was advised to wait for two months so that he could get the copies of the judgment and decree and file an appeal. When he met the Lawyer after two months, he informed that he did not file the copy application in time. Therefore, he approached one Mr.Thangaraj, another lawyer, who in turn filed an application for copies and obtained the same. Thereafter, the application to condone the delay was filed.

(3.) SO, in the light of the above principles as laid down in Shakuntala Devi v. Kuntal Kumari , A.I.R. 1969 S.C. 575 in the instant case, it cannot be said that the delay was caused due to want of bona fides on the part of the applicant.