The Court reaffirmed that the delay in filing appeals must be substantiated by sufficient evidence; mere claims, especially unsupported by documentation, are insufficient.

ORDER

The revision petitioner is the appellant, aggrieved by the dismissal of his application seeking condonation of delay of 885 days in preferring the First Appeal, challenging the fair and decretal order in IA. No. 527 of 2013 in O.S No.92 of 2000, dated 26.09.2018, on the file of the Subordinate Court, Thiruvallur.

2. I have heard Mr. D. Kulasekaran, learned counsel for the petitioner and Mr.R.Selvakumar, learned counsel for the contesting first respondent.

3. Mr.D.Kulasekaran, learned counsel for the petitioner would contend that the suit is one for partition and a final decree was passed in IA.No. 527 of 2013, with unfair division being approved by the Trial Court. The learned counsel would further state that the valid and tenable objections of the revision petitioner have not been taken into consideration by the Trial Court and therefore, the petitioner has preferred the First Appeal. Insofar as the delay, the learned counsel for the revision petitioner would state that his son is a special child and needs constant medical care and the petitioner was preoccupied with visits to the hospital and he was fully relying on his brother to file the appeal. He was under the impression that his brother would be taking care of the case and little did he realize that his brother was lethargic and did not file the appeal in time. The learned counsel would therefore state that the petitioner has made out sufficient cause explaining the delay of 885 days in preferring the first appeal and the learned First Appellate Court without appreciating the genuine difficulties of the petitioner, has erroneously proceeded to dismiss the condone delay application. He would therefore state that a fair opportunity may be given to the petitioner to prosecute the appeal on merits.

4. Per contra, Mr.R.Selvakumar, learned counsel for the first respondent would state that the First Appellate Court has rightly dismissed the application, finding that the petitioner has not shown sufficient cause, entitling him to exercise of discretion under Section 5 of the Limitation Act. He would further state that the final decree has already been given effect to even in 2018 and even at the time of the visit of the Advocate Commissioner, the petitioner was very much present and therefore, the averments made in the affidavit are false and invented for the purposes of explaining the inordinate delay. The learned counsel would therefore pray for the dismissal of the revision.

5. In reply, with regard to the final decree having already been given effect to, learned counsel Mr.Kulasekaran would rely on an additional typed set of papers, where to show that the first respondent himself has taken out an application seeking amendment of the final decree passed in IA.No. 527 of 2013 in IA.No. 1 of 2024. He would therefore state that the matter has not attained finality and as has contended by the learned counsel for the respondent.

6. I have carefully considered the submissions advanced by the learned counsel on either side. I have also gone through the records including the typed set of papers as well as the order impugned to the revision petition.

7. The only reason that is assigned by the petitioner in not preferring the appeal in time is that he was dependent on his brother, insofar as the case was concerned, as he was preoccupied with taking care of his special child and that only in April 2021, he came to know about the case. Firstly, the petitioner has not produced any documentary evidence to substantiate that his son is a special child and requires constant medical attention. Only before this Court, that too by way of an additional typed set, a medical certificate is produced. However, the same was not made availa