2023 (3) TMI 1470 - HC - Indian Laws

Condonation of delay in filing appeal - petitioner is not keeping good health and his counsel before the court below on that particular day was in some other court conducting trial work - sufficient reason for delay or not - Section 5 of the limitation Act - Permanent injunction restraining the defendants and their men from obstructing or inferring in any manner from using the Rastha by taking the bullock cart which is existing from time immemorial - HELD THAT - The present application was filed under Section 5 of the limitation Act to condone the delay of 339 days in filing the petition for restoration of the suit which is filed for permanent injunction restraining the defendants from interfering with the usage of 'Rasta'. No doubt the petitioner has not explained the reasons for the delay in his application. But, the court should have considered the same by imposing some costs. Ordinarily, the litigation should not be terminated by default, either of the plaintiff or the defendant. The cause of justice does require that as far as possible adjudication is done on merits. Though the suit is of the year 2012, still the same is pending and if the said application is not considered, the rights of the petitioner will be affected. Keeping in view of the same, this court is inclined to consider the revision by passing following order. The Civil Revision Petition is allowed setting aside the order on the file of Principal Junior Civil Judge, Adoni, on a condition of payment of costs at Rs. 1500/- to the respondents within two weeks from the date of receipt of this order.

Summary

Issues involved:
The issue involves the dismissal of a suit for non-prosecution due to a delay in filing a restoration petition, the application for condonation of delay, and the subsequent revision filed against the dismissal order.

Details of the Judgment:

Issue 1 - Delay in Filing Restoration Petition:
The petitioner filed a suit for permanent injunction, which was dismissed for non-prosecution due to a delay in filing a restoration petition. The delay of 339 days was attributed to the petitioner's ill health and the unavailability of his counsel. The court below dismissed the application under Section 5 of the Limitation Act to condone the delay, leading to the filing of the present revision.

Issue 2 - Arguments of the Petitioner:
The petitioner's counsel argued that the dismissal of the suit was not willful, and the court should have granted an opportunity to prosecute the suit. Emphasizing that delay should not impede justice, the petitioner sought to condone the delay by imposing costs on the petitioner.

Issue 3 - Arguments of the Respondent:
The respondent contended that the petitioner did not explain each day's delay adequately and failed to come to court with clean hands. The respondent argued that the court below rightly dismissed the application based on cogent reasons and opposed the revision petition.

Issue 4 - Court's Decision:
Upon perusing the record, the court acknowledged the lack of explanation for the delay but emphasized that adjudication should be done on merits. The court allowed the revision, setting aside the order of dismissal, on the condition of payment of costs to the respondents within two weeks to prevent the termination of litigation.

Separate Judgment by the Court:
The Hon'ble Judge Ravi Cheemalapati allowed the Civil Revision Petition, overturning the order of dismissal and emphasizing the importance of adjudication on merits despite the delay. The court directed the petitioner to pay costs to the respondents within a specified timeframe to avoid the termination of the suit.