The need for a substantive basis for condoning delays and the incorrect assumption of consent without objection.

ORDER

Dated this the 15th day of January, 2024 The revision petitioner is the plaintiff in O.S.No.612 of 2004 of the Additional Munsiff’s Court, Nedumangad. The suit having been dismissed, the revision petitioner preferred an appeal and the same was allowed. Thereupon, the respondent filed an application under Order 41 Rule 21, seeking rehearing of the appeal, along with an application for condoning the delay of 920 days in filing the re-hearing petition. The revision petitioner preferred detailed objection against the prayer for condonation of delay and rehearing. By the impugned order, the appellate court allowed the application for rehearing on the premise that the revision petitioner had no objection in allowing the petition. Aggrieved, this revision petition is filed.

2. Learned Counsel for the revision petitioner submitted that on the day when the petition for rehearing was taken up for consideration, Counsel for the revision petitioner was present in court whereas the Counsel for the respondent was absent. The appellate court, on a wrong impression that it was the Counsel for the revision petitioner who was absent, allowed the application for rehearing, observing that the revision petitioner had not raised any objection. It is submitted that, having filed detailed objection, there was no reason for the revision petitioner to concede for allowing the rehearing petition.

3. Learned Counsel for the respondents contended that the revision is not maintainable, since the specific case urged by the revision petitioner is that the observation in the impugned order, of the revision petitioner having conceded to the prayer for rehearing, is wrong.

The remedy of the revision petitioner in such circumstances is to seek review of the order. It is contended that the appellate judgment having been rendered without proper consideration of the factual and legal aspects, it is imperative to rehear the appeal.

4. The contention that the revision petition is not maintainable is bound to be rejected since, apart from the question whether the revision petitioner had consented for allowing the rehearing application, the order is challenged also on the ground that it does not contain any valid reason for condoning the inordinate delay in filing the application.

5. Having gone through the copy of the objection filed before the court below, I find that the revision petitioner had stoutly opposed the prayers for condonation of delay and rehearing the appeal. Being contextually relevant, paragraphs 4 and 5 of the objection are extracted hereunder;

“4. Para 2 of the affidavit is absolutely false and hence it is denied. The appeal suit was listed for hearing on 07.07.2014 and thereafter several postings were given to the parties for hearing. The case was again posted on 24.07.2014, 18.08.2014, 24.10.2014. After that the case was posted as last chance for hearing on 12.11.2014 and thereafter the case was again posted for hearing as last chance on 11.12.2014, 07.01.2015 and 17.01.2015. And at last the appeal was posted on 13.03.2015 and heard the parties on that day and delivered the judgment on merits on 17.03.2015. The appeal never allowed or passed a decree as ex-parte and the appeal suit was decreed on merits. The respondent's counsel was also present on the date of hearing of appeal and the case was taken for orders and subsequently delivered the judgment and decree on merits. Hence the respondent/petitioner has only option for preferring a 2nd appeal before the appropriate court. Hence, the readmission petition itself is not maintainable and never the respondents set ex-parte in the appeal suit.

5. The respondent/petitioner is not having any decease or ailment and she never took any treatment in the alleged period. After 17.03.2015 the respondent/ petitioner attended several family functions, marriage functions, death ceremonies of the family etc. The appellant and 1st respondent are brother and sister and they jointly attended in several family funct