TMI Blog2014 (4) TMI 1302X X X X Extracts X X X X X X X X Extracts X X X X ..... sion petitioner has not produced medical certificate to show that she was ill and her doctor advised her to take bed rest till 27.7.2006. The above said finding of the trial Court is perverse and illegal and hence, the order passed by the trial Court is to be set aside and the revision petition is to be allowed. In the result, the civil revision petition is allowed and the order passed by the trial Court is set aside and the delay of 440 days in filing the appeal is condoned and the above said application is allowed accordingly. - R. Karuppiah, J. For the Appellant : Mr. R. Subramanian. For the Respondents : Mr. C. Deivasigamani. ORDER R. KARUPPIAH, J. 1. The civil revision petition has been filed to set as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision petitioner approached the previous counsel, who was on record, but he expressed his inability to conduct the case. Thereafter, she engaged the present counsel on record and filed the appeal with delay condonation petition. The delay is neither wilful nor wanton and thereafter prayed for condoning the delay of 440 days in filing the first appeal. 4. The respondent herein filed a detailed counter denying the above said averments made in the affidavit and stated that after passing of preliminary decree, a final decree application was filed in I.A. No. 146 of 2007 and the same is pending. It is also averred in the counter that the allegations made in the affidavit are all false and imaginary. If really the revision petitioner was under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision petitioner to prove the same and therefore, the trial Court has correctly dismissed the petition. 8. It is not in dispute that the revision petitioner and the respondent are sisters and the original suit is filed for partition in respect of the immovable properties. The trial Court passed a preliminary decree in the suit in favour of the plaintiff on 20.4.2006. As against the judgment and decree passed by the trial Court, the revision petitioner filed the first appeal with the delay of 440 days. 9. The reasons stated by the revision petitioner is that due to illness, she taken treatment from 20.6.006 and also the doctor advised her to take bed rest till 27.7.2006 and hence, she unable to file appeal within time. Thereafter, when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But, it is a different matter when first court reuses to condone the delay. In such cases the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even unt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a cause would be decided on merits after hearing the parties. 3. Every day's delay must be explained does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal as well as the appearance of the Official Liquidator in the proceedings. Thereafter, there was no representation on number of occasion. Further in the said proceedings, the suit property was already sold. The Division Bench of this Court after considering all the facts stated in that petition, has not condoned the delay. Therefore, the facts stated in the above said decision are not applicable to the facts of the present case since in the instant case, the preliminary decree alone was passed and the final decree proceedings are still pending and further the revision petitioner has properly explained the delay. 15. A careful perusal of the law laid down by the Supreme Court in various decisions, clearly revealed that to remove injusti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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