CRP.SR/42593/2016 of Thangavelu Vs Sengottaiyan(died) on 14 August 2026

ORDER

This is an application, seeking condonation of a delay of 978 days in preferring the revision, challenging the order passed in I.A.No.734 of 2012 in O.S.No.235 of 2010 on the file of Sub Court, Thiruchengode.

2. I have heard Mr.Karthikeyan for Mr.S.Joel, learned counsel for the petitioner and Mr.P.Valliappan, learned Senior Counsel for Mr.SMS.Shriram Narayanan, counsel for the contesting first respondent.

3. At the outset, Mr.Karthikeyan, learned counsel for the petitioner would contend that the very application in I.A.No.734 of 2012 was not even necessary to have been taken out since the said application, on wrong advise, had been filed seeking condonation of delay in setting aside the abatement, consequent to the demise of the first defendant in the suit. According to Mr.Karthikeyan, the son of the deceased first defendant was himself the plaintiff in the suit and therefore, the question of abatement never arose in the first place. He would further state that though the status of the petitioner as son of the first defendant has been vehemently denied by the respondents, taking me through the plaint filed by the first defendant himself during his life time, seeking partition, Mr.Karthikeyan would invite my attention to the admission of the first defendant that the revision petitioner is the son of the first defendant. He would therefore state that there can be no better admission in favour of the revision petitioner, confirming his status as son of the first defendant and consequently, the trial Court clearly fell in error in dismissing the application, seeking condonation of the delay in setting aside the abatement. He would therefore state that when there was no abatement at all, the trial Court should have allowed the applications which were erroneously taken out.

4. As regards the present delay in filing the revision petition, Mr.Karthikeyan, taking me through the affidavit filed in support of the petition, would state that the petitioner is an illiterate and had no proper legal advice and he was not in a position to contact an advocate, in order to file the revision petition before this Court. He would therefore state that when the petitioner has a strong case on merits, this Court should liberally construe the request of the petitioner, by condoning the delay and affording a fair opportunity to the petitioner to challenge the order in Interlocutory application, dismissing the condone delay application seeking to set aside abatement. In support of his submission, learned counsel for the petitioner relied on the decision of the Hon’ble Supreme Court in the case of of Binod Pathak and Others vs Shankar Choudhary and Others, reported in 2025 SCC Online SC 1411.

5. Per contra, Mr.P.Valliappan, learned Senior Counsel appearing for the respondents would firstly contend that the petitioner has not made out sufficient cause for condonation of the delay of 978 days in preferring the revision petition. He would further state that though the petitioner claims to be an illiterate, the petitioner has engaged a counsel in the trial Court and also took out an interlocutory application in ARD No.20 of 2014 and took back all original documents that were filed by him in the suit in O.S.No.235 of 2010 before the Sub Court, Tiruchengode. He would therefore state that the petitioner has alienated all three items of suit property and suppressing the same, the present revision petition has been filed. Mr.P.Valliappan, learned Senior Counsel also relied on the decision of the Hon’ble Supreme Court in Balwant Singh (Dead) vs Jagdish Singh and Others, reported in (2010) 8 SCC 685 and Pathapati Subba Reddy (died) by legal representatives and another vs Special Deputy Collector reported in (2024) 12 SCC 336. Learned Senior Counsel therefore states that absolutely no discretion can be exercised in favour of such a petitioner who has played with the process of the Court and under the guise of being an illiterate, his request for condonation of delay cannot be entertained. In reply, Mr. Mr.Karthikeyan, learned counsel for the petitioner contends that both ARD Applications were dismissed and the original documents have not been taken return from the Court.

6. I have carefully considered the submissions of the learned counsel on either side.

7. Insofar as the arguments that the suit never abated since the petitioner is one of the sons of the first defendant is concerned, it is touching the merits of the suit claim. In any event, it was the petitioner who voluntarily approached the trial Court and took out applications seeking condonation of the delay in setting aside the abatement and to implead the legal representatives of the deceased first defendant. In any event, now it is settled by the recent pronouncement of the Hon’ble Supreme Court in the case of Shivamma vs Karnataka Housing Board, reported in 2025 SCC Online SC 1969, where it is held by the Hon’ble Supreme Court that while considering the application for condonation of delay, the Court is not required to go into the merits of the claim and merely because the petitioner has a good and strong case in the main suit, it cannot be a ground to exercise discretion in condoning the delay, when the petitioner does not make out a case by showing sufficient cause, explaining the delay in question.

8. In the light of the above, I am now restricting the scope of enquiry to the reasons assigned by the petitioner in the petition seeking condonation of delay. The petitioner has stated in the affidavit filed in support of the condone delay application that he was employed in North India and the impugned order in I.A.No.734 of 2012 was not communicated to him properly and in such circumstances, he was not in a position to engage a counsel in Chennai and prefer the revision petition in time.

9. The revision was filed along with a petition to condone delay application on 06.06.2016 before this Court, Now, going back to the arguments of the learned counsel, especially the Senior Counsel Mr.P.Valliappan, the petitioner himself took out an application in ARD No.20 of 2014, seeking return of the original documents and that application came to be filed on 09.12.2014. However, it is brought to my notice by Mr.Karthikeyan that the said application was not signed by the petitioner, but only by his counsel. However, I find that a similar application was filed seeking return of documents by the first respondent in ARD No.5 of 2015 in March 2015 and the revision petitioner has filed counter affidavit on 01.05.2015. A true copy of the counter affidavit is also filed along with the typed set of papers, relied on by the counsel for the first respondent. The said counter affidavit has been signed by the petitioner and also his counsel and also there is verification of the averments set out in the counter statement which is again signed by the petitioner. Though it is not clear as to whether the said counter affidavit was also signed by the petitioner and not by the counsel alone, the petitioner is unable to produce any material to show that it was only the counsel who signed in the counter in ARD No.5 of 2015 also, like how the application in ARD No.20 of 2014 was signed and filed by the counsel for the petitioner.

10. Even giving the benefit of doubt in favour of the revision petitioner that the revision petitioner did not sign the affidavits which are referred herein above, the fact remains that the petitioner was in touch with his counsel during this relevant period of time to give instructions atleast. In fact, it was also pointed out by Mr.Karthikeyan that both the applications for return of documents were dismissed by the trial Court. However, what is more relevant is the fact that in and by three sale deeds dated 05.05.2016, the petitioner has alienated the suit properties. The revision has been filed only in June 2016. There is no whisper about the factum of the suit properties being alienated, in the affidavit filed in support of the condone delay application. In such circumstances, it is far fetched even to believe the version of the petitioner that he was not informed about the order in I.A.No.734 of 2012 and that he was employed in North India and therefore could not come to Chennai until June 2016 to prefer the revision. In the interregnum period in December 2014 and again in May 2015, the petitioner has been in active contact with his counsel and has in person executed three sale deeds conveying all three items of suit properties. Therefore, the reasons assigned in the affidavit filed in support of the petitioner justifying the delay of 978 days are clearly false and also not believable. Once the petitioner approaches the Court with a false case and also suppresses material facts and circumstances, the petitioner does not deserve any indulgence, much less a discretion to be exercised in his favour, by condonation of an inordinate delay of 978 days.

11. Coming to the decision that has been relied on by the learned counsel for the petitioner, in the case of Binod Pathak and Others vs Shankar Choudhary and Others, reported in 2025 SCC Online SC 1411, the Hon’ble Supreme Court was dealing with a procedural error committed by the High Court under Order XXII Rule 10(A) of Civil Procedure Code. This decision has been relied on by the learned counsel for the petitioner to contend that the counsel for the first respondent did not even file a Memo as contemplated under Order XXII Rule 10(A) of Civil Procedure Code. However, as

already discussed in the light of the authoritative pronouncement in the case of Shivamma vs Karnataka Housing Board, reported in 2025 SCC Online SC 1969, while deciding the condone delay application, this Court is not obligated to look into the merits and demerits of the case of the petitioner in the main case, unless a case is made out for condonation of delay.

12. I have already found that the delay has not been satisfactorily explained and in fact, the petitioner has sworn to a false affidavit. Therefore, this decision is of no avail to the petitioner.

13. In the case of Balwant Singh (Dead) vs Jagdish Singh and Others, reported in (2010) 8 SCC 685, the Hon’ble Supreme Court has held that the law of Limitation is substantive law and in the event of a valuable right having accrued in favour of one party, as a result of the failure of the other party to explain the delay, by showing sufficient cause and his own conduct, then, it will be unreasonable to take away such accrued right on mere asking of the applicant, especially when the delay is result of negligence, default or inaction of the applicant. The Hon’ble Supreme Court further held that justice must be done to both the parties equally which alone would achieve the ends of justice and discretion cannot be exercised in favour of a negligent party, which would result in unfair treatment being meted out to the other party, depriving him of a valuable right that has already accrued in law, as a result of his acting vigilantly.

14. The suit is of the year 1987 and now almost, four decades since the suit was filed by the revision petitioner, originally as minor and as held by the Hon’ble Supreme Court when the petitioner has been totally negligent in prosecuting the matter, the respondents/defendants cannot be deprived of the rights that were accrued in their favour.

15. In the case of Pathapati Subba Reddy (died) by legal representatives and another vs Special Deputy Collector, reported in (2024) 12 SCC 336, the Hon’ble Supreme Court has held that an appeal preferred after expiry of the limitation is liable to be dismissed and the discretion conferred under Section 5 of Limitation Act empowering the Court to admit an appeal beyond the prescribed period of limitation shall not be exercised, even if sufficient cause is shown, when there are other factors such as negligence and failure to exercise due diligence. The Hon’ble Supreme Court has further held that the Court should not adopt an injustice oriented approach in dealing with the application for condonation of delay in filing appeals and instead should follow a pragmatic line to advance substantial justice.

16. Applying the ratio laid down in the cases of Balwant Singh (Dead) vs Jagdish Singh and Others, reported in (2010) 8 SCC 685, and also in Pathapati Subba Reddy (died) by legal representatives and another vs Special Deputy Collector, reported in (2024) 12 SCC 336 as well to the facts of the present case, the petitioner having not made sufficient cause, is not entitled to exercise of discretion under Section 5 of Limitation Act.

17. In the result, CMP No.10505 of 2016 is dismissed and CRP SR No.42593 of 2016 is dismissed at the SR stage itself. No costs. 14.08.2026 sr Index:yes/no Website:yes/no Speaking Order/Non-speaking Order To The Subordinate Court, Tiruchengode, Namakkal District

P.B.BALAJI.,J sr Pre-Delivery Order in CMP No.10505 of 2016 in CRP SR No.42593 of 2016 14.08.2026