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2012 Supreme(Mad) 4831
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
G.RAJASURIA J.
Misiriya Umma Appellants
Vs.
Mary Perez Respondents
C.R.P.(NPD)(MD) No.35 of 2012
Decided on : 06-12-2012.
Advocate Appeared:
For Petitioners Mr.Meenakshi Sundram for Mr.D.Nallathambi
For Respondents Mr.G.Prabhu Rajadurai
The valuable right of appeal and the party's entitlement to not suffer due to the advocate's mistake influenced the court's decision to condone the delay in filing the appeal.
Headnote:
Delay Condonation - Advocate's Mistake - The court condoned the delay in filing the appeal due to the mistake of the advocate, emphasizing the valuable right of appeal and the party's should not suffer due to the advocate's error.
Fact of the Case:
The petitioners filed a Civil Revision Petition to set aside the order of the lower Court which dismissed their application to condone a delay of 116 days in filing an appeal. The delay was attributed to the advocate misplacing the memorandum of appeal.
Finding of the Court:
The court found that the delay should be condoned, considering that it was not due to the party's fault but the advocate's mistake. The court emphasized the valuable right of appeal and ruled in favor of condoning the delay, subject to the payment of costs by the petitioners.
Issues: The main issue was whether the delay in filing the appeal could be condoned, given that it was caused by the advocate's mistake.
Ratio Decidendi: The court decided to condone the delay, highlighting the valuable right of appeal and the fact that the party should not suffer due to the advocate's error.
Final Decision: The court allowed the Civil Revision Petition, condoned the delay of 116 days in filing the appeal, and imposed a condition for the payment of costs by the petitioners to the respondents.
1. This Civil Revision Petition has been filed to get set aside the petition and order dated 17.06.2011 passed in I.A.No.514 of 2010 in the unnumbered A.S.No....... of 2010, by the learned Sub Judge Tuticorin.
2. Heard both sides.
3. The learned Counsel for the revision petitioners would echo the cridecoeur and heart burns of his clients to the effect that his clients presented the memorandum of appeal with the delay petition to get the delay of 116 days condoned in filing the appeal on the main ground that their Advocate misplaced the memorandum of appeal and wherefore, they could not file it in time; after hearing both sides, the lower Court dismissed the application, mainly on the ground that the affidavit was sworn in by the advocate himself.
4. Being aggrieved by and dissatisfied with the order of the lower Court, this Civil Revision Petition has been focussed by the revision petitioners on various grounds.
5. The point for consideration is as to whether the delay could be condoned or not?
The Point:
6. This is a peculiar case, wherein the delay occurred not because of the party, but because of the Advocate and the Advocate himself virtually filed the affidavit taking the burden on himself. However, the party could have filed an affidavit also. But taking into account that the delay is not a huge, I am of the considered view that the delay should be condoned, because the right of appeal is an valuable one and because of the mistake committed by the Advocate, the party should not suffer.
7. Hence, I am of the considered view that the delay of 116 days in filing the appeal could be condoned. The point is answered accordingly.
8. Wherefore, the delay of 116 days in filing the appeal is condoned, subject to payment of costs of Rs.2,000/- (Rupees Two Thousand Only) by the revision petitioners to the respondents within a period of one week from today. On such compliance, the lower Court shall number the I.A. filed under Order IX Rule 13 of the Code of Civil Procedure Code and process it as per law and thereafter, on such application being allowed, number the appeal and dispose of the same as expeditiously as possible. Should the revision petitioners fail to comply with the condition stipulated by this Court, this order will not enure to their benefit.
9. On balance, this Civil Revision Petition is allowed as above. No costs.
