Madras High Court
V.R.Petthal vs The Chief Educational Officer on 5 September, 2019
Bench: S.Manikumar, D. Krishnakumar
WA SR.No.96485 of 2010
and M.P.No.1 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.09.2019
CORAM:
THE HON'BLE MR.JUSTICE S.MANIKUMAR
AND
THE HON'BLE MR.JUSTICE D. KRISHNAKUMAR
WA SR.No.96485 of 2010
and
M.P.No.1 of 2015
V.R.Petthal ... Appellant
Vs.
1. The Chief Educational Officer,
O/o. The Chief Educational Officer,
Sivagangai District.
2. The Director of School Education,
DPI Compound, College Road,
Chennai - 6 ... Respondents
MISCELLANEOUS PETITION filed under Order IV Rule 9(4) of AS Rules, to
condone the delay of 1830 days in preferring the Writ Appeal in WA
Sr.No.96485 of 2010.
WRIT APPEAL filed under Clause 15 of the Letters Patent against the Order
dated 29.07.2010 made in W.P.No.45162 of 2006 (OA No.1186 of 2000).
For Appellant : Mr.V.Ravikkumar
1/10
http://www.judis.nic.in
WA SR.No.96485 of 2010
and M.P.No.1 of 2015
JUDGMENT
[Judgment of the Court was made by S.MANIKUMAR, J.] WA SR.No.96485 of 2015, is filed against the order made in WP No.45162 of 2016 (OA No.1186 of 2000) dated 29.07.2010, by which the writ Court declined to interfere with an order of recovery dated 12.04.1997, passed by Chief Educational Officer, Sivagangai District, with a delay of 1830 days in representing. Reasons assigned for the delay are as follows:
"3.... Then as against order of the Hon'ble Single Judge as Writ Appeal was filed on 01.11.2010 and S.R.Number was also assigned as WA SR.No.96485/2010. Then the said writ appeal was returned for want of certain particulars by the Registry on 19.11.2010 and 10 days time was given.
4. It is respectfully submitted that meanwhile, the above said papers along with the bundle was misplaced, while shifting Advocate Office from 102, LDG Road, Little Mount to 99, SPA Apartments, Little Mount, Chennai - 15. As per the papers of the abovesaid case was mixed with the other disposed bundles, inspite of great efforts we unable to trace the above said matter. Subsequently our office was shifted from 88, SPA Apartments to 67, Arokiya Madha Nagar, 1st Street, Little Mount. Due to frequent shifting of our office on three occasions, the misplaced bundles are unable to trace. Now after made thorough search of 2/10 http://www.judis.nic.in WA SR.No.96485 of 2010 and M.P.No.1 of 2015 each and every disposed bundles, the above bundle was traced by us.
Immediately after the said bundle is traced, this affidavit is filed to condone the delay in Representation of WA Sr.No.96485/2010. In the above matter the petitioner is claiming recovery made by the respondents in an unjust manner. The delay is neither wanton nor wilful and only because of the abovesaid reasons, the said delay was occurred, beyond our control. The Appellant is aged about 70 years and she is solely depending up on her pensionary benefits.
Unless the petition for Delay in Representation is condoned, the Appellant will be put to irreparable loss and grave hardship. The balance of convenience is in favour of the petitioner."
2. Perusal of the affidavit shows that the Writ Appeal has been filed on 01.11.2010 and returned for want of certain particulars by the Registry on 19.11.2010. Though, appellant was given 10 days time for representation, the same has been done after 1830 days.
3. While setting out the principles of law to be followed, in the matter of considering the applications filed for condonation, in H.Dohil Constructions 3/10 http://www.judis.nic.in WA SR.No.96485 of 2010 and M.P.No.1 of 2015 Company Private Limited V. Nahar Exports Limited and Another, reported in 2015 (1) Supreme Court Cases 680, the Hon'ble Supreme Court, after considering the Hon'ble Division Bench judgment of this Court in Tamilnadu Mercantile Bank Ltd., Vs. Appellate Authority, reported in (1990) 1 LLN 457 and decision of the Hon'ble Supreme Court in Esha Bhattacharjee v.
Raghunathpur Nafar Academy, reported in (2013) 12 SCC 649, at paragraph Nos.23 and 24, held as follows:
“23. We may also usefully refer to the recent decision of this Court in Esha Bhattacharjee [Esha Bhattacharjee v. Raghunathpur Nafar Academy, reported in (2013) 12 SCC 649], where several principles were culled out to be kept in Principles
(iv), (v), (viii), (ix) and (x) of para 21 can be usefully referred to, which read as under: (SCCpp.658-59) “21.4(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former 4/10 http://www.judis.nic.in WA SR.No.96485 of 2010 and M.P.No.1 of 2015 doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
21.9 (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weight the scale of balance of justice in respect of both parties and the said principle cannot be given a total go-by in the name of liberal approach.
21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
24. When we apply those principles to the case on hand, it has to be stated that the failure of the Respondents in not showing due diligence in filing of the appeals and the enormous time taken in the refiling can only be construed, in the absence of any valid explanation, as gross negligence and lacks in bonafides as displayed on the part of the Respondents. Further, when the Respondents have not come forward with proper details as regards the date when the papers were returned for refiling, the non-furnishing of satisfactory reasons for not refiling of papers in time and the failure to pay the Court fee at 5/10 http://www.judis.nic.in WA SR.No.96485 of 2010 and M.P.No.1 of 2015 the time of the filing of appeal papers on 06.09.2007, the reasons which prevented the Respondents from not paying the Court fee along with the appeal papers and the failure to furnish the details as to who was their counsel who was previously entrusted with the filing of the appeals cumulatively considered, disclose that there was total lack of bonafides in its approach. It also requires to be stated that in the case on hand, not refiling the appeal papers within the time prescribed and by allowing the delay to the extent of nearly 1727 days, definitely calls for a stringent scrutiny and cannot be accepted as having been explained without proper reasons. As has been laid down by this Court, Courts are required to weigh the scale of balance of justice in respect of both parties and the same principle cannot be given a go-by under the guise of liberal approach even if it pertains to refiling. The filing of an application for condoning the delay of 1727 days in the matter of refiling without disclosing reasons, much less satisfactory reasons only results in the Respondents not deserving any indulgence by the Court in the matter of condonation of delay. The Respondents had filed the suit for specific performance and when the trial Court found that the claim for specific performance based on the agreement was correct but exercised its discretion not to grant the relief for specific performance but grant only a payment of damages and the Respondents were really keen to get the decree for specific performance by filing the appeals, they should have shown utmost diligence and come forward with justifiable reasons when 6/10 http://www.judis.nic.in WA SR.No.96485 of 2010 and M.P.No.1 of 2015 an enormous delay of five years was involved in getting its appeals registered.” In the above reported case, the Apex Court also considered the aspect of delay in refiling of the appeal and on the facts and circumstances of the case, observed that it was without disclosing the reasons, much less satisfactory reasons. In H.Dohil constructions case, it was a delay of 1727 days in refiling.
4. It is also useful to extract paragraph Nos.14 to 17 of the judgment in Tamilnadu Mercantile Bank's case.
“14. We are unable to agree with the reasoning of the learned Judge that no litigant ordinarily stands to benefit by instituting a proceeding beyond time. It is common knowledge that by delaying a matter, evidence relating to the matter in dispute may disappear and very often the party concerned may think that preserving the relevant records would be unnecessary in view of the fact that there was no further proceeding. If a litigant chooses to approach the Court long after the time prescribed under the relevant provisions of the law, he cannot say that no prejudice would be caused to the other side by the delay being condoned. The other side would have in all probability destroyed the records thinking that the records would not be relevant as there was no further proceeding in the matter. Hence to view a matter of condonation of delay with a presupposition 7/10 http://www.judis.nic.in WA SR.No.96485 of 2010 and M.P.No.1 of 2015 that no prejudice will be caused by the condonation of delay to the respondent in that application will be fallacious. In our view, each case has to be decided on the facts and circumstances of the case. Length of the delay is a relevant matter to be taken into account while considering whether the delay should be condoned or not. It is not open to any litigant to fix his own period of limitation for instituting proceedings for which law has prescribed period of limitation.
17.... Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long time, it cannot be presumed to be non-deliberate delay, and in such circumstances of the case, he cannot be heard to plead that substantial justice deserved to be preferred as against technical considerations. We are of the view that the question of limitation is not merely a technical consideration. Rules of limitation are based on principles of sound public policy and principles of equity. It is a litigant liable to have a Damocles' sword hanging over his head indefinitely for a period to be determined at the whims and fancies of the opponent?”
5. Reverting to the case on hand, the number of days of delay in representation is 1830. Reasons assigned are simpliciter that papers were misplaced and could not be traced. Appellant has not been diligent in pursuing the appeal. Inaction is per se apparent. Reasons assigned are not satisfactory.
8/10http://www.judis.nic.in WA SR.No.96485 of 2010 and M.P.No.1 of 2015 Having regard to the principles set out supra, we are not inclined to condone the delay of 1830 days in representing the appeal papers. Hence, the condone delay petition viz. M.P.No.1 of 2015 is dismissed. Consequently, WA Sr.No.96485 of 2010 is also dismissed at SR stage itself. No costs.
[S.M.K., J.] [D.K.K., J.] 05.09.2019 Index: Yes/No Internet: Yes.
Speaking / Non-Speaking Order ars To
1. The Chief Educational Officer, O/o. The Chief Educational Officer, Sivagangai District.
2. The Director of School Education, DPI Compound, College Road, Chennai - 6 9/10 http://www.judis.nic.in WA SR.No.96485 of 2010 and M.P.No.1 of 2015 S.MANIKUMAR, J., and D.KRISHNAKUMAR, J., ars WA SR.No.96485 of 2010 and M.P.No.1 of 2015 05.09.2019 10/10 http://www.judis.nic.in