Madras High Court
The Assistant Commissioner (Ct) vs Appellate Authority on 26 April, 2024
Bench: R. Mahadevan, Mohammed Shaffiq
CMP.Nos.9421, 9423 & 9426 of 2024 and W.A.SR.Nos.92809, 92807 & 92808 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.04.2024
CORAM :
THE HONOURABLE MR. JUSTICE R. MAHADEVAN
and
THE HONOURABLE MR. JUSTICE MOHAMMED SHAFFIQ
CMP.Nos.9421, 9423 & 9426 of 2024
and
W.A.SR.Nos.92809, 92807 & 92808 of 2015
The Assistant Commissioner (CT)
Broadway Assessment Circle
199, Thambu Chetty Street
Chennai - 600 001 Petitioner/Appellant in all cases
v
M/s. Rama Metals
Represented by its Proprietor
Old No.31, New No.65, 2nd Floor
Sembudoss Street, Chennai - 600 001 Respondent/Respondent in all cases
CMP.Nos.9421, 9423 & 9426 of 2024 : Civil Miscellaneous Petitions filed under
Order IV Rule 9 (4) of A.S. Rules seeking to condone the delay of 2981 days in
representing the Writ Appeal SR.Nos.92809, 92807 & 92808 of 2015, respectively.
W.A.SR.Nos.92809, 92807 & 92808 of 2015 : Appeals filed under Clause 15 of the
Letters Patent against the orders dated 15.06.2015 passed in WP.Nos.16840, 16841
& 16842 of 2015.
For petitioner/appellant Mr.M.Venkateswaran
in all cases Special Government Pleader
1/11
https://www.mhc.tn.gov.in/judis
CMP.Nos.9421, 9423 & 9426 of 2024 and W.A.SR.Nos.92809, 92807 & 92808 of 2015
COMMON ORDER
(made by R.MAHADEVAN, J.) These civil miscellaneous petitions have been filed by the petitioner / appellant seeking to condone the delay of 2,981 days in re-presenting each of the above writ appeals.
2. Heard the learned Special Government Pleader appearing for the petitioner and perused the affidavits filed in support of these petitions, wherein, it has been stated that the Registry has returned the appeal papers for rectification of certain defects on 16.11.2015. After rectifying the defects, the appeal papers could not be re-presented, within the time stipulated, as the same were mixed up with some other bundles. Upon search, on 03.01.2024, the writ appeal papers were found out from a heap of old bundles and the same were, thereafter, re-presented before the Registry. Thus, the delay of 2,981 days in re-presenting the appeal papers is neither wilful nor wanton and same may be condoned.
3. Admittedly, the petitioner / appellant has approached this court by filing the writ appeals as against the order dated 15.06.2015 passed by the learned Judge 2/11 https://www.mhc.tn.gov.in/judis CMP.Nos.9421, 9423 & 9426 of 2024 and W.A.SR.Nos.92809, 92807 & 92808 of 2015 in WP.Nos.16840, 16841 & 16842 of 2015, with an inordinate delay. However, the perusal of the affidavits filed in support of the condone delay petition, does not show any reason, much less valid reason to accept the delay in re-presenting the writ appeals. The reason advanced by the petitioner/appellant in its condone delay petition is very vague and too general and hence, the same cannot be considered as a reasonable one so as to condone the inordinate delay of 2,981 days.
4. In this context, it is pertinent to refer to a decision of the Hon'ble Supreme Court in N. Balakrishnan v. M. Krishnamurthy, [1998(7) SCC 123], wherein, it was observed as follows:
“The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time- limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not meant to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for 3/11 https://www.mhc.tn.gov.in/judis CMP.Nos.9421, 9423 & 9426 of 2024 and W.A.SR.Nos.92809, 92807 & 92808 of 2015 a legislatively fixed period of time. Condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other case, delay of a very long range can be condoned as the explanation thereof is satisfactory. 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 not 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. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. The words 'sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice.”
5. Similarly, the relevant portion of the judgment of the Hon'ble Supreme Court in Sankaralingam and another v. V. Rahuraman [2002(3) CTC 13] with regard to the points to be pondered in a case of condonation of delay, which would speak volume against the petitioners therein, is extracted below:
“(a) Negligence and inaction, that too wilful, has to be inferred from the facts and circumstances, (b) Vagueness of the affidavit and contradiction between the affidavit and deposition before Court, (c) Failure to place any materials before Court to substantiate the case, and (d) Absence of arguable points and law in the defence.” 4/11 https://www.mhc.tn.gov.in/judis CMP.Nos.9421, 9423 & 9426 of 2024 and W.A.SR.Nos.92809, 92807 & 92808 of 2015
6. In Esha Bhattacharjee v. Raghunathpur Nafar Academy [2013 (12) SCC 649], the Hon'ble Supreme Court has culled out the principles applicable to an application for condonation of delay and the same are reproduced hereunder:
“i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation.
iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
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.
v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former 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.5/11
https://www.mhc.tn.gov.in/judis CMP.Nos.9421, 9423 & 9426 of 2024 and W.A.SR.Nos.92809, 92807 & 92808 of 2015
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 weigh 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.
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.
xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.”
7. In H.Dohil Constructions Company Private Limited V. Nahar Exports Limited and Another, [2015 (1) Supreme Court Cases 680], the Hon'ble Supreme Court, after considering a decision of this Court in Tamil Nadu Mercantile Bank Ltd., Vs. Appellate Authority, [(1990) 1 LLN 457] and its earlier decision in Esha Bhattacharjee case (supra), held as follows:
“23. We may also usefully refer to the recent decision of this Court in Esha Bhattacharjee v. Raghunathpur Nafar Academy, reported in (2013) 12 SCC 649], where several principles were culled out to be kept in mind while dealing with such applications for condonation of delay. Principles (iv), (v), 6/11 https://www.mhc.tn.gov.in/judis CMP.Nos.9421, 9423 & 9426 of 2024 and W.A.SR.Nos.92809, 92807 & 92808 of 2015
(viii), (ix) and (x) of para 21 can be usefully referred to, which read as under: (SCCpp.658-59) ...
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 nonfurnishing of satisfactory reasons for not refiling of papers in time and the failure to pay the Court fee at 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 7/11 https://www.mhc.tn.gov.in/judis CMP.Nos.9421, 9423 & 9426 of 2024 and W.A.SR.Nos.92809, 92807 & 92808 of 2015 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 an enormous delay of five years was involved in getting its appeals registered.”
8. It is also useful to extract paragraph Nos.14 and 17 of the judgment of this court in Tamil Nadu Mercantile Bank Ltd case (supra), which read as under:
“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 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 8/11 https://www.mhc.tn.gov.in/judis CMP.Nos.9421, 9423 & 9426 of 2024 and W.A.SR.Nos.92809, 92807 & 92808 of 2015 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.”
9. Keeping in mind the principles of law as extracted supra and applying the same to the facts of this case, we are of the opinion that in granting the indulgence and condoning the delay, it must be proved beyond the shadow of doubt that the petitioner / appellant was diligent and was not guilty of negligence, whatsoever. Whereas, the petitioner / appellant herein has not shown any good and sufficient reason to condone the huge delay of 8 years in re-presenting the appeals.
The delay cannot be condoned simply because the petitioner / appellant’s case is hard and calls for sympathy or merely out of benevolence to the party seeking relief.
Therefore, we are not inclined to condone the delay in re-presenting the writ appeals.
10. Accordingly, these C.M.Ps. are dismissed. Consequently, the writ appeals stand rejected at SR stage itself. No costs.
[R.M.D., J.] [M.S.Q., J.] 26.04.2024 9/11 https://www.mhc.tn.gov.in/judis CMP.Nos.9421, 9423 & 9426 of 2024 and W.A.SR.Nos.92809, 92807 & 92808 of 2015 av/cad 10/11 https://www.mhc.tn.gov.in/judis CMP.Nos.9421, 9423 & 9426 of 2024 and W.A.SR.Nos.92809, 92807 & 92808 of 2015 R. MAHADEVAN, J.
and MOHAMMED SHAFFIQ , J.
av/cad Common order in CMP.Nos.9421, 9423 & 9426 of 2024 and W.A.SR.Nos.92809, 92807 & 92808 of 2015 26.04.2024 11/11 https://www.mhc.tn.gov.in/judis