Madras High Court
E.Muthukumaran vs Sri Chennamalleswarar & on 29 November, 2017
Author: M.Duraiswamy
Bench: M.Duraiswamy
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 29.11.2017 CORAM: THE HONOURABLE MR.JUSTICE M.DURAISWAMY A.S (SR).No.81961 of 2017 and C.M.P.No.20244 of 2017 E.Muthukumaran ... Appellant Vs. 1.Sri Chennamalleswarar & Sri Chennakesavaperumal Devasthanam, by its Hereditary Trustee Manali R.Srinivasan having office at No.84, Devaraja Mudali Street, Park Town, Chennai 600 003. T.Devayani (Died) Unnamalai (Died) Thiagaraja Achari (Died) 2.T.Duraivelu 3.T.Rajendran ... Respondents Appeal filed under Section 96 of the Code of Civil Procedure against the judgment and decree dated 14.10.2000 passed in O.S.No.7106 of 2000 on the file of the Additional District and Sessions Judge, Fast Track Court No.III, Chennai. For Appellant : Mr.V.Raghupathi J U D G M E N T
There is a delay of 4256 days in filing the First Appeal as against the judgment and decree passed in O.S.No.7106 of 2000 dated 14.10.2005. The 1st respondent/plaintiff filed the suit in O.S.No.7106 of 2000 for delivery of possession and for damages for use and occupation.
2.The trial Court viz., the Additional District and Session Court, Fast Track Court III, Chennai, by its judgment and decree dated 14.10.2005, decreed the suit.
3.Pursuant to the decree passed in O.S.No.7106 of 2000, the plaintiff filed the Execution Petition in E.P.No.1603 of 2007 and according to the petitioner, the said Execution Petition was dismissed for default on 25.03.2007. Thereafter, the 1st respondent filed a 2nd Execution Petition in E.P.No.3457 of 2015, which according to the petitioner is pending. In Para - 6 of the affidavit filed in support of the petition, the petitioner, who is the 6th defendant in the suit, has stated that subsequent to the dismissal of the 1st Execution Petition in E.P.No.1603 of 2007 on 25.03.2007, he met the Temple staff in the 2nd week of April 2007 and that he was informed that no Execution Petition was pending and that they would not evict him if he agreed to pay the enhanced rent. The petitioner has stated that subsequently he had paid a sum of Rs.5,000/- by Demand Draft to the 1st respondent.
4.Mr.V.Raghupathi, the learned counsel appearing for the petitioner submitted that the petitioner has been paying the monthly rents without any default to the 1st respondent.
5.It is also brought to the notice of this Court that the petitioner had received the notice in the 2nd Execution Petition in E.P.No.3457 of 2015. Though the petitioner had received the notice in E.P.No.3457 of 2015 and was contesting the Execution Petition, the present petition seeking for condonation of delay of 4256 days was filed only on 13.11.2017. When a contested decree was passed by the trial Court as early as on 14.10.2005, the petitioner, who was the 6th defendant in the suit, remained silent for more than a decade for filing the present appeal. In fact, the present appeal has been filed after a lapse of more than 12 years.
6.It is also pertinent to note that the other defendants viz., defendants 1 to 5 have not challenged the decree passed in O.S.No.7106 of 2000.
7.The learned counsel appearing for the petitioner, in support of his contention, relied upon the judgment reported in AIR 1987 Supreme Court 1353 [Collector, Land Acquisition, Anantnag and another Vs. Mst.Katiji and others] wherein the apex Court held as follows:-
...
3. The legislature has conferred the power to condone delay by enacting S.51 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression sufficient cause employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-
1. Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfied the Court that he had sufficient cause for not preferring the appeal or making the application within such period.
1.Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2.Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3.Every day's delay must be explained does not mean that a pedantic approach should be made. Why not every hour's delay. Every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
4.When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
8.In the case of condonation of delay, unless the parties seeking for the condonation of the delay explains the reason for the delay in a satisfactory manner, the delay should not be condoned.
9.The Hon'ble Supreme Court in the judgment reported in (2015) 1 Supreme Court Cases 680 [H.Dohil Constructions Company Private Limited Vs. Nahar Exports Limited and another] held as follows:
...
13.It was then contended on behalf of the appellant(s) that the period of delay in filing the appeals, as well as a long delay of 1727 days in the refiling was not properly explained by the appellant(s). It was pointed out to us that in the applications filed in support of condoning the delay in filing the appeals, as well as, in refiling the appeal papers there was virtually no explanation at all covering the period of delay. When we examined the said submission by making reference to the relevant applications filed on behalf of the respondents in the applications filed for condoning delay of 9 days in filing the appeals, the stand of the respondents was that after the judgment and decree dated 30.05.2007, the appeals were filed vide Diary Entry No.118619 on or about 06.09.2007, which was delayed by 9 days. The respondents claimed that delay in filing the appeals came to its knowledge only when it received the objections in the paper book refiled on 20.03.2012 and that immediately after it came to its knowledge the lower court files and records which were entrusted with the previous counsel which were found to have been dumped in a record room in Gurgaon were traced by contacting the said counsel and in that process the delay of 9 days in filing the appeals came to be ascertained. It was, therefore, contended that the said delay of 9 days in filing the appeals was unintentional and inadvertent and was not in the control of the appellant(s). Except for the above averments stated in the applications dated 28.05.2012, no other details were found in the said applications. The said applications were resisted by the respondents.
14.In the applications filed for condoning the delay of 1727 days in refiling, it was stated that after the judgment was pronounced by the trial court on 30.05.2007, the counsel was instructed to file an appeal, that the appeal was drafted and was sent to the respondents for signature by the counsel, which was sent back to the counsel for filing and that the counsel informed about the filing of the appeal on or about 06.09.2007 vide Diary No.118619. According to the respondents, it was made to believe that the appeals filed on its behalf were tagged along with RFA No.234 of 2008, filed by the appellant(s) as against that part of the judgment which went against them.
10.In the case on hand, the petitioner has not explained the reasons for the inordinate delay of 4256 days in a satisfactory manner. The ratio laid down by the Hon'ble Apex Court in the judgment reported in (2015) 1 Supreme Court Cases 680 [H.Dohil Constructions Company Private Limited Vs. Nahar Exports Limited and another] squarely applies to the facts and circumstances of the present case.
11.In these circumstances, in the absence of sufficient cause shown by the petitioner, the delay cannot be condoned. The petition is devoid of merits and the same is liable to be dismissed. Accordingly, the petition in C.M.P.No.20244 of 2017 is dismissed. Consequently, the First Appeal in A.S.(SR).No.81961 of 2017 is rejected. No costs.
Index : Yes/No 29.11.2017
Internet : Yes
Speaking Order/Non-speaking order
bri/va
M.DURAISWAMY.J,
bri/va
A.S.No.SR.81961 of 2017
and C.M.P.No.20244 of 2017
29.11.2017