Madras High Court
K.Shanmuga Mudaliar vs N.Chamundeeswari on 31 July, 2019
Author: T.Ravindran
Bench: T.Ravindran
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 15.07.2019
PRONOUNCED ON : 31.07.2019
CORAM
THE HONOURABLE MR.JUSTICE T.RAVINDRAN
C.M.P.No.14656 of 2019
in
AS.SR No.129172 of 2018
1.K.Shanmuga Mudaliar
2.S.Thanigaivel
3.S.Anuradha ... Petitioners
Vs.
N.Chamundeeswari ... Respondent
Prayer :- The Civil Miscellaneous Petition has been filed under Order 41
Rule 3 (A) of CPC to condone the delay of 272 days in filing the above
second appeal.
For Petitioners : Mr.S.Giridharan
For Respondent : Mr.D.Manimaran
ORDER
The Civil Miscellaneous Petition has been laid by the petitioner to condone the delay of 272 days in filing the second appeal.
2.The suit has been laid by the respondent against the petitioners for partition and it is seen that the suit had been disposed of in favour of http://www.judis.nic.in 2 the respondent by granting the preliminary decree as prayed for and it is also seen that following the same, the final decree had also been passed. Now, according to the petitioners, the present first appeal had been preferred challenging the final decree. As there occurred the delay of 272 days in preferring the same, to condone the said delay, the present petition has been laid.
3.Now, according to the petitioners, the first petitioner had undergone major heart bye pass surgery and also suffered with paralysis attack and as the second petitioner is his only son, he has been necessitated to take care of his father's medical treatment and thereby, unable to contact his advocate to proceed further and the third petitioner is also away from Chennai and as the first petitioner alone had been conducting the suit and only after receipt of the letter from the respondent along with the Demand Draft, they had contacted their counsel and as their counsel was also not aware of the final decree and only thereafter, made the necessary copy application, hence, according to them, the delay has occurred in preferring the first appeal.
4.The abovesaid delay petition has been stoutly resisted by the respondent contending that the preliminary decree has been passed in the suit on 16.05.2015, thereafter, an application was taken out by the respondent for passing the final decree and the advocate commissioner http://www.judis.nic.in 3 had been appointed for the same and on the basis of the commissioner's report, the final decree had been passed on 24.10.2017 and it is put forth that the petitioners/appellants had appeared in the final decree proceedings and not put forth any objection to the Commissioner's report and therefore, to say that they are unaware of the final decree proceedings on account of the bye pass surgery said to have been conducted on the first petitioner etc., are false and the petition cannot be allowed to put the blame on their counsel for the alleged delay and the reasons given by the petitioners for the delay are totally false and hence, prayed for the dismissal of the petition.
5.According to the petitioners, on account of the bye pass surgery conducted on the first petitioner and the subsequent paralysis attack and as the second petitioner was his only son and required to look after him and the third petitioner is away from Chennai, it is put forth that the petitioners were unable to proceed further in the matter in challenging the final decree passed in the suit. The respondent has challenged the abovesaid cause projected by the petitioners for the delay as false and untenable. If really the first petitioner had underwent any bye pass surgery and thereafter, paralysis attack and taken treatment, as rightly put forth by the respondent's counsel, necessary materials pointing to the same would have been projected by the petitioners with a view to substantiate the alleged cause put forth by them. Despite the challenge http://www.judis.nic.in 4 put forth by the respondent to the abovesaid cause, the petitioners had not come forward to place any material whatsoever with reference to the same. As rightly put forth by the respondent's counsel, with reference to the so-called bye pass surgery, paralysis attack etc., on the treatment said to have been given to the first petitioner, necessary medical records would have been furnished by the petitioners. As rightly said, if the abovesaid case of the petitioners has any element of truth, the petitioners would have endeavoured to place such records to buttress their case. On the other hand, other than averring the abovesaid cause and despite the challenge put forth to the same by the respondent, the petitioners having not placed any materials to substantiate the said cause, in such view of the matter, as rightly put forth by the respondent's counsel, the alleged cause projected by the petitioners for the delay cannot be readily accepted and resultantly, it has to be held that the alleged cause projected by them has no basis. Accordingly, it is seen that the petitioners are unable to place any materials even prima facie, in support of the same. Equally, the claim of the petitioners that the third petitioner was not in station, even the said plea is found to be totally vague and unclear and as to during what period the third petitioner was away from Chennai and for what reasons, she was away from Chennai and when she had returned again, no particulars of the same had been given on the part of the petitioners. It is seen that the second petitioner is very well available for taking further steps to prefer the appeal, and as http://www.judis.nic.in 5 rightly contended by the respondent's counsel, the second petitioner could have easily contacted his counsel through telephone and instructed him to take further steps in preferring the appeal for challenging the final decree. However, the petitioners have come forward with the cause as if their counsel is also not aware of the passing of the final decree. When it is put forth by the respondent that the petitioners had been participating in the final decree proceedings one way or the other and in such view of the matter, their case that their counsel is also not aware the passing of the final decree is found to be totally untenable and unacceptable and it is evident that the abovesaid cause is made falsely to the knowledge of the petitioners. It is seen that only after the respondent had taken further steps pursuant to the allotment of the share in the final decree proceedings, the petitioners had endeavoured to proceed further and thereafter, applied for the copies and come forward with the appeal.
6.In the light of the abovesaid position, when the alleged cause projected by the petitioners for the huge and inordinate delay are found to be totally baseless and also not substantiated by the petitioners even prima facie with necessary materials and furthermore, when the reasons alleged for the delay are found to be vague and unclear and when it is seen that the petitioners had been participating in the final decree proceedings one way or the other as put forth by the respondent and when the final decree proceedings had come to an end and the http://www.judis.nic.in 6 respondent had been allotted his share as per the final decree, as rightly put forth by the respondent, only with a view to drag her and prevent from enjoying the fruits of the final decree, it is seen that the petitioners have come forward with the delay petition and accordingly, unable to put forth any sufficient cause for the alleged delay.
7.In the light of the abovesaid factors, it is seen that the petitioners have not furnished any sufficient cause for the delay and even the cause alleged by them is found to be not buttressed with acceptable and reliable materials even prima facie and in such view of the matter, I am not inclined to accept the case put forth by the petitioners for the huge and inordinate delay.
In conclusion, the Civil Miscellaneous Petition is dismissed. Consequently, connected A.S.Sr.No.129172 of 2018 is rejected.
Index : Yes / No
Internet : Yes / No 31.07.2019
sms
To
The Section Officer, V.R.Section, High Court, Madras. http://www.judis.nic.in 7 T.RAVINDRAN, J.
sms Pre-Delivery Judgment made in C.M.P.No.14656 of 2019 in AS.SR No.129172 of 2018 31.07.2019 http://www.judis.nic.in