IMPORTANT POINT
The court established that mere allegations of negligence against counsel do not constitute sufficient cause for condonation of delay under Section 5 of the Limitation Act, and the applicant must demonstrate diligence and bona fides in pursuing their case.

ORDER :

(P.B. Balaji, J.)

(Prayer: Civil Revision Petition filed under section 115 of the Civil Procedure Code, against the Fair order and Decreetal Order made in I.A.No.33 of 2017 in A.S.No..... of 2019 dated 25.03.2019 on the file of the Subordinate Court, Srivilliputhur.)

The plaintiff, who suffered a decree of dismissal of the suit for partition in O.S.No.390 of 2008, filed an appeal against the said judgment and decree, dated 10.01.2012 along with an application to condone the delay of 1757 days in preferring the said appeal. The first appellate Court allowed the said application, as against which the respondents/ defendants are before this Court, challenging the said order of the appellate Court, condoning the delay of 1757 days.

2. The grounds raised by the revision petitioners are that the delay was inordinate and not supported by bonafide cause; the respondent has made an allegation against his counsel only for the purpose of filing the application for condonation of delay; the delay has not been properly explained and the first appellate Court has erroneously condoned the delay for irrelevant and extraneous circumstances without assessing the requirements to be shown by an applicant, who seeks condonation of delay, invoking Section 5 of the Limitation Act.

3. I have heard Mr.M.Thirunavukkarasu, learned counsel appearing for the revision petitioners and Mr.V.Meenakshi Sundaram, learned counsel appearing for the respondent.

4. The learned counsel for the revision petitioners would submit that the first appellate Court has grossly erred in condoning the huge and inordinate delay, especially, having found that the reasonings assigned in the affidavit filed in support of the Section 5 application being not established. He would further contend that the first appellate Court ought not have gone into the merits of the suit/appeal and based his decision to condone delay on the same, and primarily, ought to have satisfied itself with regard to the mandate of Section 5 of the Limitation Act. He would place reliance on the following decisions:

I) In Union Bank of India vs. K.R.Jewellers and others reported in 2008(5) CTC 651, where, the Division Bench of this Court held that the allegations of negligence against counsel is not a ground to condone delay because the party has an equal responsibility to follow up the matter.

ii) In F.Ramesh vs. M/s.Ramalingam Investments, Salem represented by its Managing Partner K.Sridharan reported in 2013(5) MLJ 565, where, this Court held that the applicant seeking condonation of delay ought to have diligently prosecuted the case by contacting his counsel and even though a duty is cast upon the Advocate to represent his client, the contention of the revision petitioner that he was waiting for a call from his Advocate and since there was no response, he did not contact his Advocate and in the above said circumstances, the ex-parte decree came to be passed, cannot be accepted.

iii) In M.Duraisamy vs. Vasantha and others reported in 2023(1) CTC 444, where this Court held that the Court cannot condone delay in a routine manner in the absence of any genuine and acceptable reason, as it would result in causing prejudice to other party.

iv) In V.Marimuthu vs. V.Kalaiselvi and others reported in 2023(1) T.N.C.J., 953 (Mad), where this Court in a partition suit, held that the delay of 889 days could not be condoned in a mechanical manner and proceeded to dismiss the condone delay petition.

v) In S.Rajamanickam vs. Parvathiammal (died) and others reported in 2023(1) T.N.C.J., 986 (Mad), where this Court rejected the reason stated by the appellant seeking condonation of delay in filing the appeal on the ground that he could not contact his counsel on account of his illness and held that the delay of 356 days was unexplained.

5. The learned counsel for the revision petitioners would, therefore, pray for allowing the Civil Revision Petition.

6. Per contra, Mr.V.Meenakshi Sundaram, learned counsel for the resp