F.M. Ibrahim Kalifulla, J. - (1.) THIS is an application filed on behalf of the petitioner who was the defendant in the suit in O.S. No. 7414 of 1996, for condoning the delay of 431 days in filing the first appeal. The suit was laid by the respondent herein for declaration of title as well as for recovery of possession of the suit schedule property which is a Flat, namely, Flat No. 1/D, situate in the first floor of the building "Marble Arch", No. 4 & 5, Wallers Avenue East, Mylapore, Madras-4 within the Corporation Division No. 101.
(2.) THE petitioner is represented herein by his Power of Attorney Holder, one Tmt. Rukmani. According to the petitioner, after the above suit was decreed in favour of the respondent on 2-8-1999, the counsel was instructed to apply for certified copies of the Judgment and Decree, that the petitioner who is in abroad, having given power of attorney in favour of his agent, it was left to the Power Agent to follow up further, that the Power Agent being an aged person, was suffering from Diabetes and Hypertension, that she got admitted in a hospital at Vellore for treatment, that the counsel who informed her earlier that after the receipt of the certified copies of the Judgment and Decree would contact her, did not send any communication, that the Power Agent who was admitted in the hospital on 1-11-1999 was discharged only on 31 -12-1999, that even thereafter, she was advised to take bed rest, that due to her ill health, at the insistence of her son, she had to stay at Vellore for more than a year from 1-1-2000 for the purpose of consulting the local doctors, that she also suffered from Arthritis which prevented her free movement, that in the mean time, when she contacted the counsel at Chennai, she was informed that the order copy was not made ready, that subsequently, at the instance of the respondent, Court Bailiff went to the suit property for taking delivery the tenant of the petitioner who was in possession of the suit schedule property intimated the Power Agent and thereafter only she came to know that there was some problem in getting the certified copies of the Judgment and Decree. According to the Power Agent of the petitioner, when she contacted the counsel, she was not getting proper information and therefore, she sought the help of the tenant himself who is an Advocate to find out the fate of the copy application which also did not yield necessary result, that thereafter, as she pressurized the staff at the office of her counsel for the order copy, a fresh application was made on 14-12-2000 and the order copy was thereafter obtained on 20-3-2001 which resulted in the filing of the appeal with a delay of 431 days. According to the petitioner, if the delay is not condoned, serious prejudice will be caused to the petitioner, while no prejudice will be caused to the respondent. The petitioner also filed a supporting affidavit of the counsel who appeared in the Court below and in the said affidavit, the counsel would state that after the pronouncement of the Judgment in the suit on 2-8-1999, he asked his Clerk one Saravanan to apply for the certified copies of the Judgment and Decree along with bill of costs, that he was under the impression that his signature was obtained for making the necessary copy application, that at that time, he was informed that the respondent had gone abroad and the petitioner did not contact him, that much later, a representative of the respondent met the counsel and asked for the certified copies of the Judgment and Decree and only thereafter, he found out that no copy application had been made. According to the counsel, his advocate Clerk Saravanan also left the Office almost a year before the representative of the respondent met him. The application is resisted by the respondent. A detailed counter affidavit has been filed on behalf of the respondent through his Power Agent who would state that after the pronouncement of the Judgment and Decree in O.S. 7414 of 1996, an execution petition in E.P.151 of 2000 was filed, in which, notice was served on the petitioner herein, that the petitioner failed to appear in the execution Court, whereupon, delivery was ordered by the execution Court. According to the respondent, when the Bailiff was accompanied by him for the execution of the warrant of possession, there was an obstruction by one Mr. Sundaravadanam, Advocate and therefore, delivery could not be effected. The respondent contended that there is no bona fide in the claim of the petitioner in this application and therefore, the application deserves to be dismissed. Mr. V. Raghavachari, learned counsel appearing for the petitioner, by relying, upon the decisions reported in AIR 1987 S.C. 1353 = 100 L.W. 676 ( Collector, Land Acquisition, Anantnag & Another v. Mst. Katiji & others ); 2000 (3) CTC 727 = 200 3 L.W. 938 C. Subramaniam v. Tamil Nadu Housing Board, Rep. By Its Chairman & Managing Director ); 1998 (2) CTC 533 = 1990 1 L.W. 739 ( N. Balakrishnan v. M. Krishnamurthy ); AIR 2000 S.C. 1221 = 2000 3 L.W. 231; G.P. Srivastava v. R.K. Raizada & others ) and AIR 1984 S.C. 41 ( Smt. Lachi Tewari & others v. Director of Land Records and others ) and AIR 1985 NOC 14 (Delhi) ( Ram Parshad & Others v. Smt. Poornima ), contended that in matter of condonation of delay, a liberal approach should be made, that acceptance of explanation should be the rule and refusal the exception, that for the fault of the counsel in not making the copy application in time, the petitioner should not be penalized and that by condoning the delay, no prejudice is going to be caused to the respondent, while on the other hand, it would deprive the petitioner of his valuable right of challenging the Judgment and Decree once and for all which related to the rights of the parties in respect of a valuable immoveable property.
(3.) ON the other hand, Mr. P. Ranganatha Reddy for M/s. King & Patridge, appearing for the respondent would contend that there was no bona fide at all in the case of the petitioner in moving the present application for condoning the delay of enormous delay of more than a year and since sufficient cause has not been shown covering the entire period of delay, the application is liable to be rejected. Having heard the learned counsel for the respective parties, we find that the delay involved in the present application in filing the first appeal is of the order of 431 days. Before considering the present application for condonation of delay, we feel it appropriate to set out the principles which are to be borne in mind while considering the application for condonation of delay as set out in the various judgments of the Hon'ble Supreme Court as well as the Division Bench of our High Court. In the judgment reported in 1998 (2) CTC 533 (N. Balakrishnan v. M. Krishnamurthy), the position has been set out as under in para 14: "14. It must be remembered that in every case of delay there can be some lapse "on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is put-forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation" Underlining is ours) ;