IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 189-190 OF 2011 [Arising out of SLP(C) Nos.36047-36048/2010]

State of Kerala & Ors. … Appellants

Vs. M.G. Presanna … Respondent   

O R D E R

Mr. Nishe Rajen Shonker, learned counsel appears  

for the respondent on caveat and waives further notice.  

Leave granted. Heard.

2. A Writ Petition filed by the respondent was allowed  

by a learned Single Judge of the Kerala High Court, by  

order  dated  8.4.2009.  The  appellants  filed  a  review  

petition in regard to the said order. There was a delay of  

305 days in filing the review petition. The Learned single  

Judge heard the application for condonation of delay and  

by  order  dated  1.3.2010  condoned  the  delay  in  filing  

review petition. Ultimately by order dated 9.4.2010, he  

dismissed the review petition. Thereafter, the appellants  

filed a writ appeal against the order dated 8.4.2009 of

the learned single Judge. A Division Bench of the High  

Court has dismissed the writ appeal on the ground of delay  

of 342 days in filing the writ appeal.  

3. The appellants contended that the review petition  

filed by them in respect of the learned single Judge’s  

order dated 8.4.2009, was disposed of only on 9.4.2010 and  

therefore the period spent till 9.4.2010 ought to have  

been treated as having been properly explained and if that  

period was excluded, there was no delay in filing the writ  

appeal. The Division Bench rejected the said contention by  

holding that even though delay of 305 days in filing the  

review petition might have been condoned by the learned  

single Judge, that cannot be treated as sufficient cause  

for condoning the delay in filing the writ appeal. The  

said order is challenged in this appeal by special leave.  

4. It is true that technically the Division Bench was  

not bound to accept the period in respect of which delay  

in filing the review petition had been condoned by the  

learned  single  Judge,  as  a  period  in  regard  to  which  

sufficient cause was made out for condoning the delay,  

while considering the question of delay, in filing the  

writ appeal. That is because the learned single Judge was  

dealing with delay in filing the review petition, whereas  

the Division Bench was dealing in filing the writ appeal.  

Nevertheless,  if  the  delay  of  305  days  in  filing  the  

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review petition had been condoned by the learned single  

Judge,  as  having  been  satisfactorily  explained  and  

thereafter the review petition had been dismissed without  

prejudice to the right to file an appeal, the Division  

Bench in all fairness ought to have excluded the entire  

period upto the date of disposal of the review petition,  

as a period bona fide spent in pursuing other remedies. Of  

course, the position would be different if the Division  

Bench had found that filing of the review petition was not  

for  bonafide  reasons  or  there  were  other  reasons  to  

suspect the bonafides of the appellant. Be that as it may.  

We are of the view that on the facts of this case, the  

period upto the dismissal of the review petition, which  

was filed and prosecuted bonafide by the State, ought to  

have  been  treated  as  satisfactorily  explained,  while  

considering the explanation for the delay, and  the delay  

in filing the appeal ought to have been condoned.

5. In view of the above, we allow these appeals, set  

aside the order dated 22.7.2010 of the Division Bench,  

restore the writ appeal against the order dated 8.4.2009  

to the file of the High Court, condone the delay in filing  

the said appeal and request the High Court to dispose of  

the writ appeal on merits expeditiously.

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.....................J.        ( R.V. RAVEENDRAN )

New Delhi;        ....................J. January 07, 2011.               ( A.K. PATNAIK )

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