Madras High Court
S.Alagar vs R.Dinakaran on 1 October, 2018
Author: R. Tharani
Bench: R. Tharani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON: 10.09.2018
DELIVERED ON : 01.10.2018
Dated: 01.10.2018
CORAM
THE HONOURABLE MRS. JUSTICE R. THARANI
C.M.P.(MD)No.10865 of 2017
in
S.A.(MD)No.SR3938 of 2017
1.S.Alagar
2.S.Venkatesan
3.S.Rani
4.S.Saravanan .... Petitioners
Vs.
1.R.Dinakaran
2.V.Jeyanthi
3.R.Saravanan
4.S.Shyamala .... Respondents
Prayer in C.M.P.(MD)No.10865 of 2017:- Petition is filed under Section 5 of
limitation Act, to condone the delay of 957 days in filing the Second Appeal.
Prayer in S.A.(MD)No.SR3938 of 2017:- Appeal is filed under Section 100 of
the Code of Civil Procedure to set aside the Judgment and Decree in A.S.No.71
of 2009 on the file of the learned I Additional Sub Judge, Madurai confirming
the Judgment and Decree in O.S.No.1217 of 2005 dated 27.02.2009 before the
learned Principal District Munsif, Madurai.
!For Petitioners : Mr.Arumugam for Ms.K.Vidya
^For Respondents : Mr.K.K.Ramakrishnan
:ORDER
Heard Mr.Arumugam, learned counsel appearing for the petitioners and Mr.K.K.Ramakrishnan, learned counsel appearing for the respondents.
2.This petition has been filed to condone the delay of 957 days in filing the Second appeal against the Judgment and Decree in A.S.No.71 of 2009 on the file of the learned I Additional Sub Judge, Madurai.
3.The petititoners herein are the defendants in the suit. The respondents herein filed the suit for a prayer of declaration and for permanent injunction and for mandatory injunction and for declaration of easementary right of pathway and the petitioners herein filed a counter claim. The trial Court partly decreed the suit of the respondents declaring that the respondents are entitled to 1.1 feet on the northern side of portion described as AE and 1.5 feet on the northern side of portion described as ED and they are entitled to the relief of mandatory injunction for the removal of encroachments in the above extent of property and suit was dismissed with regard to other prayers. The petitioners filed an appeal before the I Additional Sub Judge, Madurai in A.S.No.71 of 2009 and the respondents herein filed a cross appeal. The first Appellate Court dismissed the appeal and the cross appeal and confirmed the Judgment passed by the trial Court. The petitioners have come forward to file this second appeal against the dismissal of the appeal. There is a delay of 957 days in filing the second appeal.
4.On the side of the petitioners, it is stated that the petitioners are having arguable points in the appeal and the trial Court order is not satisfactory to both the parties and both the parties have filed appeal and cross appeal and unfortunately, the first Appellate Court confirmed the lower Court Judgment and the lower Court has decreed 1.1 feet and 1.5 feet in favour of the respondents which is of no use. Except a sadistic pleasure, the decree will be of no use to the respondents also.
5.It is further stated that on 17.03.2014 after the Judgment was pronouncement, the Advocate asked his Clerk to file a copy application but the Clerk, due to sudden illness, left the office without filing the copy application and did not join the office again. Only after verification, the Advocate came to know that the Clerk has not filed any copy application and left the office and then he approached the Counsel and filed copy application on 07.12.2015, certified copy made ready on 24.06.2016 and on 25.06.2016, the lower Court Counsel directed his Clerk to forward the copies to the petitioner. But unfortunately, the Certified copies are mixed up with some other disposed of bundles and was sent to some other clients. Then only the petitioner collected certified copies of the Judgment and on 29.11.2016, he made arrangement for filing this second appeal. In the circumstances, there was a delay of 957 days in filing the second appeal and prayed the delay to be condoned.
6.The learned counsel appearing for the petitioners relied on the Judgment passed by this Court in the case of Bharat Petroleum Coporation Ltd., v. C.S.Prakasa Rao reported in 2014(3) MWN (Civil) 465, which reads as follows:
?If Explanation does not indicate any mala fides/dialatory tactics then Court should be liberal in condoning delay-Condonation of delay should not have deleterious effect upon ability of plaintiff to have a fair trial.?
7.The learned counsel appearing for the petitioners relied on the Judgment passed by this Court in the case of N. Balakrishnan v. M.Krishnamurthy reported in 1998(II) CTC 533, which reads as follows:
?Rule of limitation is not meant to destroy rights of parties- limitation is intended to see that parties do not resort to dilatory tactics but seek remedy promply-legal remedy should be kept alive for legislatively fixed period of time.?
8.The learned counsel appearing for the petitioners relied on the Judgment passed by the Hon'ble Supreme Court in the case of Nand Kishore v. State of Punjab reported in 1995 6 Supreme Court Cases 614, which reads as follows:
?in the circumstances, held, the validity of the provision enabling the compulsory retirement, held, could not be deemed to have been questioned and decided against the said person in the said writ petition- Even otherwise, any presumption of constitutionality of the said provision at the stage of that writ petition stood rebutted by the subsequent decision of the Supreme Court-Hence, the said suit, held, not barred by res judicata.?
9.The learned counsel appearing for the petitioners relied on the Judgment passed by this Court in the case of P.Chandrasekaran v. A.S.Chinnamuthu reported in 2002(4) CTC 484, which reads as follows:
?Petitioner filed petition to condone delay in filing petition to set aside preliminary decree and petitioner pleaded that advocate who was representing petitioner originally shifted practice to Madras and did not give any intimation to petitioner regarding same and petitioner on coming to know about some engaged another advocate who filed petition to set aside ex parte final decree only- petitioner should be given fair opportunity to defend his case as he has raised some valid defence in written statement filed along with setting aside petition.?
10.On the side of the respondents, it is stated that there was a delay of 957 days without valid or bonafide reasons. There is no evidence attributed for the illness of the Clerk. Entrusting the bundle with the Clerk is itself is not a bonafide one. It is duty of the party to take necessary steps and to watch the subsequent steps. Though execution petition is pending from the year 2015, the failure on the part of the petitioners cannot be entertained. It is stated that E.P.NO.155 of 2015 is filed before the learned Additional District Munsif, Madurai on 06.10.2015 and the E.P. Came up for hearing on 18.11.2015 and the petitioners' counsel undertake to file vakalath and on 06.01.2016, he filed vakalath and he filed counter on 18.08.2016. The petitioner is aware of the E.P. Proceedings which is pending against him.
11.The learned counsel appearing for the respondents relied on the Judgment passed by the Hon'ble Supreme Court in the case of Amalendu Kumar Bera and another v. State of West Bengal reported in (2013) 4 Supreme Court Cases 52, which reads as follows:
?Held, Courts should not take liberal approach in matter of condonation of delay when State's action in preferring appeal is marred by serious latches and negligence in absence of ?sufficient cause??
12.The learned counsel appearing for the respondents relied on the Judgment passed by this Court in the case of Union Bank of India v. K.R.Jewellers and other reported in 2008 (5) CTC 651, which reads as follows:
?Held, on revision, mere allegation of negligence against counsel not a ground to condone delay because party has equal responsibility to follow up matter-no evidence in that matter?
13.Records perused. The respondents has filed the suit against the petitioners. The petitioners also filed a counter claim and the suit was partly allowed. Against the order, appeal and cross appeal were filed and the first Appellate Court confirmed the Judgment and decree of the trial Court. There was a delay of 957 days in filing the second appeal and this petition is to condone the delay. A perusal of the records reveals that the respondents herein have filed execution petition in E.P.No.155 of 2015. The petitioners herein appeared before the trial Court in E.P. Proceedings. Even then, the petitioners have not taken sufficient steps to file the appeal in time.
14.On the side of the petitioners, it is stated that the Clerk of the Advocate left the Advocate office without filing the copy application due to illness. No records is filed on the side of the petitioners to show that who is the Advocate's Clerk and when he left the office and what is the illness he suffers from and no such particulars are stated in the petition.
15.The other point raised by the petitioners is that after getting certified copies again the Advocate Clerk failed to send the same to the petitioners. There is no record to prove this contention. Except the allegation against two of the Advocate Clerks, no other reasons are stated in the petition. It is the duty of the petitioner to follow up the case. From the records, it is clear that the petitioner has appeared before the trial Court in E.P. Proceedings. The petitioners cannot claim that he has not aware of the proceedings. Each day delay is to be explained. In the above circumstances, 957 days is not at all explained by the petitioners. Hence, this delay condone petition is dismissed and Consequently, S.A.(MD)No.SR3938 of 2017 is rejected. No Costs.
To
1.The I Additional Sub Judge, Madurai.
2.The Principal District Munsif, Madurai.
.