Madras High Court
C.Thangamuthu vs Secretary on 13 September, 2019
Bench: S.Manikumar, D.Krishnakumar
W.A.SR.No.88495 of 2012
and C.M.P.No.19813 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.09.2019
CORAM:
THE HON'BLE MR.JUSTICE S.MANIKUMAR
AND
THE HON'BLE MR.JUSTICE D.KRISHNAKUMAR
W.A.Sr.No.88495 of 2012
and
C.M.P.No.19813 of 2019
C.Thangamuthu ... Appellant
Vs.
1.Secretary,
Environment & Forest Department,
Fort St.George, Chennai - 9.
2.The Principal Chief Conservator of Forests,
Office of the Principal Chief Conservator
of Forest, Panagal Maligai,
Saidapet, Chennai-15.
3.The Conservator of Forests,
Tirunelveli Circle,
Tirunelveli-7.
4.The District Forest Officer,
Kanyakumari Division,
Nagarkoil, Kannyakumari District. ... Respondents
Civil Miscellaneous Petition filed under Order IV Rule 9(4) of AS Rules, to
condone the delay of 2245 days in representing the W.A.Sr.No.88495 of 2012.
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http://www.judis.nic.in
W.A.SR.No.88495 of 2012
and C.M.P.No.19813 of 2019
WRIT APPEAL filed under Clause 15 of the Letters Patent against the Order
dated 19.07.2012 made in W.P.No.16827 of 2008.
For Appellant : Mr.George Graham
for M/s.Devadason and Sagar.
JUDGMENT
[Judgment of the Court was made by S.MANIKUMAR, J.] W.A.Sr.No.88495 of 2012, is filed against the order made in W.P.No.16827 of 2008, dated 19.07.2012, by which the writ Court dismissed the petition. There is a delay of 2245 days in representing. Reasons assigned for the delay, are as follows:
"Petitioner/appellant has submitted that his cases were handled by Mr.V.Suburayan, Advocate. He requested the said advocate to file appeal against the order passed in W.P.No.16827 of 2008. The said counsel informed him that he filed appeal against the order in Writ petition in 2012. Through the said advocate he filed W.P.No.5517 of 2014 questioning the order of payment of less pension than what he is entitled by calculating the basic pay less than what he is to. He was retired from service and used to stay with his children either in Chennai or Kanyakumari District. Since there was no response from the said Advocate for long time in March 2018. He went to him counsel's office and from there he was informed that the said 2/10 http://www.judis.nic.in W.A.SR.No.88495 of 2012 and C.M.P.No.19813 of 2019 Mr.V.Suburayan died. After the bundle was traced he engaged new counsel and from them he was able to find out that his then counsel filed the appeal on 11.10.2012. The appeal papers were returned on 16.10.2012. The counsel has taken the papers from the court failed to represent them and kept it in the bundle. I represented the appeal papers and at that time only he was able to find out that the appeal itself was not filed within 30 days. From the records he was able to find out that the copy application was filed belatedly and the order copy was collected after a lapse of 45 days. He was not informed about this. There is a delay of 2295 days in filing the appeal. If the delay was not condoned then he will be put to irreparable loss and hardship. The delay of 2295 days in filing the appeal is neither willful nor wonton but for the reasons stated above."
2. Perusal of the affidavit shows that the Writ Appeal has been filed on 11.10.2012 and returned for want of certain particulars by the Registry on 16.10.2012. Though, appellant was given 10 days time for representation, the same has been done after 2245 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 Company Private Limited V. Nahar Exports Limited and Another, reported 3/10 http://www.judis.nic.in W.A.SR.No.88495 of 2012 and C.M.P.No.19813 of 2019 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 doctrine of prejudice is attracted whereas to the latter it may 4/10 http://www.judis.nic.in W.A.SR.No.88495 of 2012 and C.M.P.No.19813 of 2019 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 the time of the filing of appeal papers on 06.09.2007, the 5/10 http://www.judis.nic.in W.A.SR.No.88495 of 2012 and C.M.P.No.19813 of 2019 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 W.A.SR.No.88495 of 2012 and C.M.P.No.19813 of 2019 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 W.A.SR.No.88495 of 2012 and C.M.P.No.19813 of 2019 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 2245. Reasons assigned are simpliciter that papers were misplaced and could not be traced. Appellant has not been diligent in pursuing 8/10 http://www.judis.nic.in W.A.SR.No.88495 of 2012 and C.M.P.No.19813 of 2019 the appeal. Inaction is per se apparent. Reasons assigned are not satisfactory.
Having regard to the principles set out supra, we are not inclined to condone the delay of 2245 days in representing the appeal papers. Hence, the condone delay petition viz. C.M.P.No.19813 of 2019 is dismissed. Consequently, WA Sr.No.88495 of 2012 is also dismissed at SR stage itself. No costs.
[S.M.K., J.] [D.K.K., J.] 13.09.2019 Index: Yes/No Internet: Yes.
Speaking / Non-Speaking Order dm To
1.Secretary, Environment & Forest Department, Fort St.George, Chennai - 9.
2.The Principal Chief Conservator of Forests, Office of the Principal Chief Conservator of Forest, Panagal Maligai, Saidapet, Chennai-15.
3.The Conservator of Forests, Tirunelveli Circle, Tirunelveli-7.
4.The District Forest Officer, Kanyakumari Division, Nagarkoil, Kannyakumari District.
9/10http://www.judis.nic.in W.A.SR.No.88495 of 2012 and C.M.P.No.19813 of 2019 S.MANIKUMAR, J., and D.KRISHNAKUMAR, J., dm W.A.Sr.No.88495 of 2012 and C.M.P.No.19813 of 2019 13.09.2019 10/10 http://www.judis.nic.in