Madras High Court
Nagappan vs Rathina Gounder on 16 February, 2022
Author: G.Chandrasekharan
Bench: G.Chandrasekharan
C.M.P.No.14505 of 2021
in S.A.SR.No.92032 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 08.12.2021
PRONOUNCED ON : 16.02.2022
CORAM
THE HON'BLE Mr. JUSTICE G.CHANDRASEKHARAN
C.M.P.No.14505 of 2021
in S.A.SR.No.92032 of 2015
1.Nagappan
2.Lakshmi
3.Janakiraman
4.Sankar
5.Manikandan
6.Arikrishnan
7.Sasikala ...Appellants
Vs.
1.Rathina Gounder
2.Veerasamy Gounder
3.Kumaravel ...Respondents
Prayer in C.M.P.No.14505 of 2018:- Civil Miscellaneous Petition is
filed under Order 41 Rule 3A and r/w. order 42 Rule 1 of the Code of
Civil Procedure, to condone the delay of 3234 days in filing Second
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C.M.P.No.14505 of 2021
in S.A.SR.No.92032 of 2015
Appeal in S.A.SR.No.92032 of 2015.
Prayer in S.A.SR.No.92032 of 2015:- Second Appeal is filed under
Section 100 of the Code of Civil Procedure,to set aside the judgment and
decree dated 22.02.2010 made in A.S.No.10 of 2009 on the file of the
Additional District and Sessions Judge, Fast Track Court No.II,
Tindivanam, confirming the judgment and decree dated 22.04.2008 made
in O.S.No.70 of 2004, on the file of the Additional District Munsif Court
at Tindivanam.
For Appellants : Mr.A.Suresh Sakthi Murugan
For R1 : M/s.M.R.Thangavel
JUDGMENT
This petition is filed to condone the delay of 3234 days in filing the second appeal in SA.SR.No.92032 of 2015.
2. It is submitted by the learned counsel for the petitioners that this Second Appeal is filed against the judgment and decree of the Additional District and Sessions Judge, Fast Track Court No.II, Tindivanam in A.S.No.10 of 2009 confirming the judgment and decree of the Additional District Munsif, Tindivanam in O.S.No.70 of 2004. https://www.mhc.tn.gov.in/judis 2/9 C.M.P.No.14505 of 2021 in S.A.SR.No.92032 of 2015
3. This Second appeal was filed on 30.10.2015, after the expiry of appeal time. There is a delay of 3234 days in filing the appeal. Appellants could not get relevant documents from the counsel engaged before the Lower Court. On 07.05.2013, a legal notice was sent to the counsel seeking the return of partition koor chit dated 29.07.1992 and the sale deed. Counsel replied on 18.05.2013 stating that he was not in possession of those documents and will return the same, if he finds them. In October 2015, the counsel's office called and handed over the documents. Immediately the appeal is filed. The delay is neither willful nor wanton. Therefore, the delay has to be condoned, and the suit has to be remanded to the Trial Court for fresh trial based on these documents.
4. The learned counsel for the respondent opposed this petition on the ground that the suit was filed in 1994. After a long run litigation, the suit was dismissed on 22.04.2008. Appeal filed by the appellants in A.S.No.10 of 2009 was also dismissed on 22.02.2010. The submission of learned counsel for appellants that they handed over koor chit dated 29.07.1992 and sale deed dated 19.06.1979 to the counsel engaged by them in the Lower Court and they were omitted to be https://www.mhc.tn.gov.in/judis 3/9 C.M.P.No.14505 of 2021 in S.A.SR.No.92032 of 2015 produced before the Trial Court and that they got the documents from the Lower Court counsel only now, cannot stand the legal scrutiny. The koor chit dated 29.07.1992 is not admitted by the respondents. There is no pleading or evidence with regard to the koor chit. The koor chit is introduced 26 years after filing of the suit. The reason assigned by the petitioners for condoning the delay of 3234 days cannot be legally sustained and therefore, it is liable to be dismissed.
5. Considered rival submissions and perused the records.
6. The petitioners/appellants filed the suit for partition in O.S.No.111 of 1994 claiming that the suit properties were purchased out of a joint family income and therefore, they are entitled to share in the suit properties. The specific case of the first respondent is that the suit properties had purchased by his independent source of income. There was no ancestral properties or ancestral nucleus to purchase the suit properties. All the suit properties are self earned properties. Both the Courts have concurrently found that petitioners/appellants failed to prove that there were ancestral properties and ancestral nucleus to https://www.mhc.tn.gov.in/judis 4/9 C.M.P.No.14505 of 2021 in S.A.SR.No.92032 of 2015 purchase the suit properties in the name of the first respondent. The suit properties were held to be separate properties of first respondent. In this view of the matter, the Trial Court dismissed the suit and First Appellate Court confirmed the findings of the Trial Court.
7. Now petitioners introduced the koor chit said to have been entered into between the brothers and mother on 29.07.1992. As rightly pointed out by the learned counsel for the respondents, there is absolutely no pleading with regard to this koor chit in the plaint. The entire case of the petitioners is that the suit properties are ancestral properties and they enjoyed the properties jointly as joint family properties. When the petitioners demanded partition, respondents refused to effect partition, necessitating the filing of the suit. There is not even a single line with regard to the alleged partition among them, especially the execution of koor chit dated 29.07.1992. A totally new case is sought to be introduced in the Second Appeal, which is filed with a huge delay of 3234 days.
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8. The perusal of koor chit shows that the second defendant Veerasami Gounder is not a party to this koor chit. It is an unregistered document. It shows that, right in presents is created through this document. Therefore, this document cannot be admitted in evidence to show the alleged partition between the parties. A new case contrary to the original case cannot be introduced even before the Trial Court and certainly not before the Second Appellate Court. A new document cannot be introduced before the First Appellate Court without sufficient reasons, certainly not before the Second Appellate Court, especially when there is absolutely no pleading with regard to the document. More so, when the Second Appeal is filed with the delay of 3234 days. Petitioners have not produced any supporting material to show the communication with the Trial Court Advocate. Assuming without, admitting that the reasons for the delay stated in the petition are true, the delay is huge and totally a new case is sought to be introduced in the Second Appeal with the request to remand the case to the Trial Court for fresh disposal. The Second Appeal can be admitted only if substantial question of law arise for the consideration. There is no possibility of any substantial question of law arise for the consideration in this Second https://www.mhc.tn.gov.in/judis 6/9 C.M.P.No.14505 of 2021 in S.A.SR.No.92032 of 2015 Appeal. Therefore, this Court is not inclined to condone the delay of 3234 days in filing SA.SR.No.92032 of 2015.
9. In fine, this Civil Miscellaneous Petition is dismissed. No costs. Second Appeal is rejected.
16.02.2022 ep Index:Yes/No Internet:Yes/No Speaking Order: Yes/No https://www.mhc.tn.gov.in/judis 7/9 C.M.P.No.14505 of 2021 in S.A.SR.No.92032 of 2015 To
1.The Additional District and Sessions Judge, Fast Track Court No.II, Tindivanam.
2.The Additional Distric Munsif, Tindivanam.
3. The Section Officer, VR Section, High Court of Madras.
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