The Court emphasized the discretion of the court in condoning delay, focusing on the acceptability of the explanation rather than the length of delay.

1. The civil revision petition has been filed to set aside the fair order and decretal order dated 05.12.2007 passed in I.A.No.56 of 2007 in ASCFR No.2816 of 2007 on the file of the District Court, Udhagamandalam.

2. Heard Mr.R.Subramaninan, learned counsel appearing for the revision petitioner and Mr.C.Deivasigamani, learned counsel appearing for the respondent.

3. For the sake of convenience, the defendant in the original suit referred as revision petitioner and the plaintiff in the original suit referred as respondent hereafter.

4. The revision petitioner herein, who is the defendant in the original suit in O.S.N.313 of 2003, filed the first appeal in ASCFR No.2815 of 2007 along with an application in I.A.No.56 of 2007 under Section 5 of the Limitation Act to condone the delay of 440 days in filing the first appeal. In the affidavit filed in support of the said application, it is stated that the original suit was decreed on 20.4.2006 and the revision petitioner applied for copies of the judgment and decree on 24.4.2006 and the same were received on 25.05.2006. It is further stated that the revision petitioner ought to have filed the first appeal on or before 21.6.2006, but, due to illness, she took treatment from 20.6.2006, and the doctor adviced her to take bed rest till 27.7.2006 and hence the revision petitioner was unable to meet her counsel on record. Further, due to communication gap, the first appeal could not be filed in time. In the meantime, the respondent herein filed a final decree application. The revision petitioner approached the previous counsel, who was on record, but he expressed his inability to conduct the case. Thereafter, she engaged the present counsel on record and filed the appeal with delay condonation petition. The delay is neither wilful nor wanton and thereafter prayed for condoning the delay of 440 days in filing the first appeal.

5. The respondent herein filed a detailed counter denying the above said averments made in the affidavit and stated that after passing of preliminary decree, a final decree application was filed in I.A.No.146 of 2007 and the same is pending. It is also averred in the counter that the allegations made in the affidavit are all false and imaginary. If really the revision petitioner was under treatment, the family members could have taken steps to file the appeal in time. Therefore, the application filed for condoning the delay of 440 days in filing the appeal is a frivolous one and also wilful and deliberate. Moreover, the revision petitioner suppressed the material facts and also she has not approached the Court with clean hands and hence, the application is liable to be dismissed.

6. The trial Court, after considering the both sides contentions and finally dismissed the said application filed in I.A.No.56 of 2007 on 5.12.2007. Aggrieved over the said order of dismissal, the revision petitioner has filed the revision petition.

7. The learned counsel for the revision petitioner submitted that both the revision petitioner and the respondent are sisters. The revision petitioner was unable to file the first appeal within time only due to her illness. Further, the previous counsel refused to conduct the case for the revision petitioner and therefore, she engaged another counsel and filed an appeal along with the application in I.A.No.56 of 2007 and the above said process, the delay has occurred.

8. Per contra, the learned counsel for the respondent submitted that the revision petitioner has suppressed the material facts and made the false averments, as if, due to illness and took treatment, unable to file appeal within time. If it is true, the revision petitioners ought to have produced the medical evidence. But, no material has been produced by the revision petitioner to prove the same and therefore, the trial Court has correctly dismissed the petition.

9. It is not in dispute that the revision petitioner and the respondent are sisters and the original suit