Madras High Court
B.Shyamala vs V.Girija on 22 December, 2022
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
C.M.P.No.22297 of 2022 in
A.S.SR.No.60455 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.12.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.P.No.22297 of 2022
in
A.S.SR.No.60455 of 2014
B.Shyamala ... Petitioner
Vs.
1.V.Girija
2.S.Gurumurthy
3.A.Divakar
4.E.Vijayakumar
5.S.Senthil
6.V.Uthirapathy
7.Megala ... Respondents
C.M.P.No.22297 of 2022 is filed under Order IV Rule 9(4) of A.S.Rules
to condone the dealy of 2745 days in representing the appeal in
A.S.SR.No.60455 of 2014.
Page 1 of 9
https://www.mhc.tn.gov.in/judis
C.M.P.No.22297 of 2022 in
A.S.SR.No.60455 of 2014
A.S.SR.No.60455 of 2014 is filed under Section 96 of the Civil
Procedure Code, to call for the records pertaining to the issue of decree
and judgment in O.S.No.12598 of 2010 on the file of the XVIII
Additional Judge, City Civil Court, Chennai and set aside the decree and
judgment dated 10.02.2014 passed by the learned XVIII Additional
Judge, City Civil Court, Chennai and thus allow the appeal.
For Petitioner : Mr.Ashokkumar.D
ORDER
The Civil Miscellaneous Petition is filed to condone the delay of 2745 days in representing the appeal in AS.SR.No.60455 of 2014.
2. The petitioner is the appellant in the Appeal Suit, which was filed on 18.07.2014 against the judgement and decree passed in CS.No.157 of 2004, which was re-numbered as OS.No.12598 of 2010.
3. The petitioner herein instituted the suit in the year 2004 for the relief of declaration and injunction. The suit was dismissed on 10.02.2014 after a lapse of about 10 years from the date of institution of Page 2 of 9 https://www.mhc.tn.gov.in/judis C.M.P.No.22297 of 2022 in A.S.SR.No.60455 of 2014 the suit. Thereafter, the appellate / plaintiff filed the appeal suit before this Court on 18.07.2014 and the appeal suit was returned by the Registry, High Court for compliance of the defects noted. The time for representation was 30 days and the petitioner had not represented within the stipulated time period and the appeal suit was represented with a delay of 2745 days, which is now sought to be condoned in the present miscellaneous petition.
4. The question arises whether such long delay can be condoned in a routine manner by the High Court, causing prejudice to the interest of the other parties to the litigation. Practical and pragmatic approach is required and an unexplained delay cannot be condone in a routine manner. Any amount of delay is to be condoned, only if the reasons are sufficient enough and acceptable by the Court. Un-condonable delay cannot be condoned by closing the eyes by the Courts. The likelihood of prejudice to be caused to the other parties to the litigation also to be taken into consideration. The Courts are not to protect the interest of any party, but to render justice to the parties to the litigation. Thus, the Page 3 of 9 https://www.mhc.tn.gov.in/judis C.M.P.No.22297 of 2022 in A.S.SR.No.60455 of 2014 prejudice to be caused on account of long delay in pursuing the matter is also to be taken into consideration, while condoning the enormous delay, which is not sufficiently explained.
5. In the present case, the affidavit filed in support of the miscellaneous petition reveals that the appeal suit was finally represented on 04.11.2022 with a delay of 2745 days. Further, the reason stated is that COVID-19 Pandemic, which caused certain issues and the clerk attached to the office of the learned counsel passed away and thus, there was delay in representing the appeal suit papers to the Registry of the High Court.
6. COVID-19 Pandemic commenced from 23.04.2020 and in respect of the COVID-19 duration, the Courts have condoned the delay pursuant to the orders of the Hon'ble Supreme Court. Thus, if the delay occurred after 23.04.2020, then all such delay are condoned without looking to the reasons assigned by the parties to the litigation. However, in the present case, the COVID-19 Pandemic reason is inapplicable, since Page 4 of 9 https://www.mhc.tn.gov.in/judis C.M.P.No.22297 of 2022 in A.S.SR.No.60455 of 2014 the appeal suit was filed on 18.07.2014 and it was returned immediately and the bundle was not represented till 23.04.2020 for about 6 years and therefore, the reason stated regarding the COVID-19 Pandemic is inapplicable and unacceptable with reference to the facts and circumstances of the case on hand.
7. The learned counsel for the petitioner made a submission that, in the event of not condoning the delay, it will have repercussion for the legal practitioners. This Court is of the humble opinion that the Courts are not to protect anybody, while dealing with the issues and the lawyers, who all are none other than the officers of the Court. A lawyer has got threefold duties and responsibilities towards the litigants, colleagues and to the Courts. Therefore, the responsibilities of a lawyer is on a higher pedestal and the duties towards the litigants, at all circumstances, are to be respected and performed by the lawyers.
8. In the event of condoning un-condonable delay in a routine manner, the same will result in miscarriage of justice and it would cause Page 5 of 9 https://www.mhc.tn.gov.in/judis C.M.P.No.22297 of 2022 in A.S.SR.No.60455 of 2014 greater prejudice to the other litigants, who are all bound to defend after several years. For instance, in the present case, the suit was instituted in the year 2004 and disposed of in the year 2014, after a lapse of about 10 years and the appeal suit was filed in the year 2014 and not pursued for the past about 8 years. In the event of condoning the delay of 2745 days, the respondents in the appeal suit have to defend their case after this length of time and therefore, the prejudice likely to be caused is also to be taken into consideration by the Courts, while condoning such enormous delay. Whether, it is a delay in filing or delay in representation, the principles of reasonableness is to be considered by the Courts. The principles of reasonableness requires firstly the reasons, its sufficiency and acceptability. If these criteria are to be complied, then the Courts would not harass in condoning the delay, even if it is an enormous. However, unexplained delay or delays, which all are insufficiently explained cannot be a ground to condone such a long delay in a routine manner by the Courts, which will result in miscarriage of justice and courts are not expected to protect anyone's negligence or lapses or otherwise.
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9. In the present case, except by stating COVID-19 Pandemic, no other sufficient explanation has been found in the affidavit, in support of the miscellaneous petition. The reason stated that the clerk attached to the learned counsel has expired, there are no details regarding the date of death and the ailments suffered or otherwise. In the absence of any such details, the courts cannot form a final opinion regarding the reasons stated. In view of the facts and circumstances, the petitioner has not furnished any candid or convincing reasons for the purpose of condoning the enormous delay of 2745 days in representing the appeal suit.
10. Accordingly, the Civil Miscellaneous Petition stands dismissed. No costs. Consequently, the connected miscellaneous petition is closed. Consequently, A.S.Sr.No.60455 of 2014 stands rejected.
22.12.2022 (1/2) Skr/Jeni Index:Yes Speaking order: Yes Page 7 of 9 https://www.mhc.tn.gov.in/judis C.M.P.No.22297 of 2022 in A.S.SR.No.60455 of 2014 To The XVIII Additional Judge, City Civil Court, Chennai.
Page 8 of 9 https://www.mhc.tn.gov.in/judis C.M.P.No.22297 of 2022 in A.S.SR.No.60455 of 2014 S.M.SUBRAMANIAM, J.
Skr/Jeni C.M.P.No.22297 of 2022 in A.S.SR.No.60455 of 2014 22.12.2022 (1/2) Page 9 of 9 https://www.mhc.tn.gov.in/judis