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2010 DIGILAW 5105 (MAD)

First v. Second

2010-11-22

M.VENUGOPAL

body2010
Judgment : 1. The Petitioners have filed the present Miscellaneous Petition praying to condone the delay of 755 days in filing the First Appeal in A.S.SR No.48665 of 2010. 2. According to the Learned counsel for the Petitioners/Appellants/Defendants 1 to 3, the First Respondent/Plaintiff has filed a suit for specific performance in O.S.No.415 of 2006 on the file of the trial Court against the Petitioners and others/Defendants wherein the trial court has decreed the suit in part by a Judgment and Decree dated 12.02.2008 and in fact, it has rejected the relief of specific performance but has directed the Defendants 1 to 3 to refund the advance amount of Rs.10 lakhs with interest at 6% p.a. from the date of decree till date of realisation and as against the said relief of return of advance, the present Appeal has been filed by the Petitioners/Appellants and that the First Petitioner/First Appellant has been conducted the case on behalf of his mother who is 60 years old and his sister and moreover, he has been affected by Jaundice and has been taking native treatment and therefore, he has not been able to contact his lower court counsel and finally, recovered from the illness during the first week of September 2008. 3. It is the further contention of the Learned counsel for the Petitioners/Appellants that only after recovering from the illness, the First Petitioner/First Appellant has contacted the lower Court counsel and that the Learned counsel has informed him that the suit has been partly allowed and he has given instructions to his counsel to project necessary application to apply certified copy of the Judgment and Decree and during the last week of September 2008, the Jaundice has become serious and again, he has been taking treatment and fully recovered only during the last week of January 2010, etc., 4. The other reason ascribed on the side of the Petitioners/Appellants for the delay of 755 days in preferring the present Appeal is due to the fact that the First Petitioner/First Appellant has not been in a position to raise resource in regard to the payment of requisite court fee during the month of January 2010 and only during the first week of May 2010, he has borrowed a sum of Rs.80,000/-from the third parties and instructed his counsel to file First Appeal and accordingly, the First Appeal has been filed on 07.06.2010 with the delay aforesaid. 5. The Learned counsel for the First Respondent/Plaintiff submits that the trial court has dismissed the First Respondent/Plaintiffs claim for specific performance but granted the alternative relief of return of advance of Rs.10 Lakhs together with interest at 6% p.a. from the 12.02.2008 being the date of Decree till date of realisation and that he has not filed an Appeal and moreover, he has projected E.P.No.4 of 2010 on the file of the Learned Additional District Judge, Fast Track Court I, Coimbatore and the matter stands posted to 08.12.2010 for enquiry. 6. The Learned counsel for the First Respondent/Plaintiff urges before this Court that the Petitioners have leased out nearly 18 shops and collecting rent and the reasons ascribed in the Affidavit of the First Petitioner/First Appellant in regard to the delay of 755 days in preferring the present Appeal are false and misleading one and per contra, the First Petitioner/First Appellant is hale and healthy and not affected by jaundice and he attended the execution proceedings on every hearing and if the delay in preferring the Appeal is condoned, it will be hardship to the Petitioners and therefore prays for dismissal of the petition. 7. No counter is filed on behalf of the Respondents 2 and 3. 8. This Court has heard the Learned counsel for the Petitioners /Appellants and the First Respondent/Plaintiff and noticed their contentions. 9. 7. No counter is filed on behalf of the Respondents 2 and 3. 8. This Court has heard the Learned counsel for the Petitioners /Appellants and the First Respondent/Plaintiff and noticed their contentions. 9. At this stage, the Learned counsel for the Petitioners/Appellants cites the decision of the Honble Supreme Court 2002-3-L.W.417, RAM NATH SAO @ RAM NATH SAHU & OTHERS V. GOBARDHAN SAO & OTHERS, wherein the Honble Supreme Court has held that Acceptance of the explanation should be the rule, refusal an exception and more so when no negligence or inaction or want of bonafide can be imputed to the defaulting party, etc., Also, in the aforesaid decision, it is laid down that the explanation should not be rejected by taking pedantic or hypertechnical view and that the explanation should not be rejected when stakes are high and arguable points of facts and law are involved. He also relies on the decision of this Court 2008(1) TNLJ 284 (CIVIL), K.S.MOHAMED IBRAHIM V. MOHAMED HABIBULLAH, wherein it is held that the suit being for refund of advance amount, is covered by Article 47 and suit filed after three years from the date of payment is not maintainable. 10. Further, the Learned counsel for the Petitioners seeks in aid of the decision of this Court 1990(TNLJ) 70 and 71, wherein it is held that the Article in the Limitation Act, 1963 that is applicable to a suit of the present nature is Article 54. The time stipulated is three years where there is a date fixed for the performance. If on the other hand no date is fixed the time is three years when the Plaintiff has noticed that performance is refused, etc., 11. The time stipulated is three years where there is a date fixed for the performance. If on the other hand no date is fixed the time is three years when the Plaintiff has noticed that performance is refused, etc., 11. However, the Learned counsel for the First Respondent/Plaintiff relies the decision of this Court RANGANATHA IYENGAR V. THANGARASU, 2008 (5) CTC 628, wherein it is held that the reasoning that the petitioner suffered from jaundice for more than 1 ½ years is without any positive evidence be adduced and accordingly, the delay cannot be condoned.He also cites the decision of this Court 2007 (4) CTC 506 , SIVAKUMAR AND ANOTHER V. R.SENGODAN, wherein it is held that Though a Court of law must take liberal view in regard to the condonation of delay of 655 days in filing the application to set aside the Exparte Decree in the absence of sufficient and convincing reason it should not excuse the delay. 12. Admittedly, the Petitioners/Appellants through the Affidavit filed by the First Petitioner/First Appellant in M.P.2 of 2010 for assigning the reason of the First Petitioner/First Appellant suffering from jaundice and has taken native treatment and after partially recovering from illness again suffered from the same disease and recovered during the first week of January 2010 and later, filed necessary copy application to obtain copy of the Judgment and Decree, etc., 13. It also transpires from the affidavit filed by the First petitioner/First Appellant in M.P.2 of 2010 that during the first week of May 2010, he has managed to borrow a sum of Rs.80,000/- from the third parties and has approached counsel to prefer an Appeal and later, filed Appeal on 07.06.2010 with a delay of 755 days. 14. The reasons ascribed by the petitioners for the delay of 755 days in preferring the Appeal are very much disputed by the First Respondent/Plaintiff. 14. The reasons ascribed by the petitioners for the delay of 755 days in preferring the Appeal are very much disputed by the First Respondent/Plaintiff. As a matter of fact, it is the contention of the First Respondent/Plaintiff that the First Petitioner/First Appellant has been hale and healthy and he has been attending the Executing Court in E.P.4 of 2010 on the file of the Learned Additional District Judge, Fast Track Court I, Coimbatore and in short, the reasons assigned by the Petitioners are incorrect one and moreover, the Petitioners have leased out nearly 18 shops and collecting the rent and as such, the affidavit is bereft of particulars and the same is liable to be dismissed in the interest of justice. 15. It is to be noted that a Court of law is to deliver substantial justice between the parties overriding technical considerations. It is true that the parties are to assign proper reasons when they approach a Court of law for seeking necessary relief either in the suit or in the Appeal filed by them. In the present case on hand, there is a delay of 755 days in preferring the present Appeal. Also, the present Appeal is filed with a delay of 755 days when admittedly E.P. is pending before the Executing Court. Generally, the length and breadth of delay is immaterial. If a condonation of delay Application/Petition is allowed by a Court of law, the maximum thing that can happen is the parties are allowed to take part in the main arena of legal proceedings so that their cause can be decided by the Court of law on merits. When a substantial justice and technical considerations are pitted against each other, then the substantial justice will have to be preferred by a Court of law overriding technicalities. 16. When a substantial justice and technical considerations are pitted against each other, then the substantial justice will have to be preferred by a Court of law overriding technicalities. 16. On a careful consideration of respective contentions, even though in the instant case on hand, the Petitioners/Appellants have not produced any documentary evidence to establish that the First Petitioner/First Appellant is suffering from jaundice and recovered after a period of sometime and again affected with the disease and later on, finally recovered fully in the first week of January 2010, etc., the terms sufficient cause has to be interpreted liberally by a Court of law by not adopting a pedantic approach or hyper technical view but to apply a pragmatic and common sense approach and that too, when particular arguable points and facts of law are involved in the subject matter of the case, viewed in that perspective, this Court without finding fault with the cause shown by the Petitioners in M.P.2 of 2010, by taking a lenient view to sub serve the ends of justice allows this petition by directing the Petitioners/Appellants to pay a sum of Rs.2,500/- (Rupees Two Thousand Five Hundred only) as cost to the First Respondent/Plaintiff directly within a period of three weeks from the date of receipt of a copy of this order failing which it is made clear that the petition will stand automatically dismissed without any further reference to this Court.