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2010 DIGILAW 743 (MAD)

R. Thukkaram v. K. Ranganathan & Others

2010-02-22

S.PALANIVELU

body2010
Judgment :- 1. In the affidavit, it is alleged that on the same date of pronouncement of judgment on 11.02.2005, copy application was filed and copies of the judgment and decree were made ready on 21.03.2005, that since the petitioner was aged about 66 years and was seriously ill, he could not move out freely from Nilgiris to meet his counsel at Chennai and since he was also put in possession of the suit property, he was under the bonafide impression that the defendants would come to terms for a settlement with him and due to illness, he was not able to take any steps either for settlement or for filing of the appeal, that for the last three years he was bedridden and was not able to take any steps to file the first appeal and only in August 2008, he recovered from his illness and met his counsel at Chennai and entrusted the papers and the Court fees to file the said appeal and the present appeal was prepared and filed on 25.08.2008. In the meantime, the delay of 1165 days has occured in filing the appeal which is neither wilful nor wanton but purely for the bonafide reason stated above. Hence, the delay may be condoned. 2. In the counter affidavit filed by the respondent, interalia, it is alleged that the averments contained in the affidavit are not correct, that it is false to state that the petitioner was bedridden for the past three years and therefore he was unable to take any steps to file the first appeal, that filing an amendment application stating that the actual delay occured in filing the appeal is 1165 days and that too after the counsel for respondent pointed out the actual delay and brought the same to the notice of the registry. It is an after thought which would show the malafides of the petitioner and therefore the petition has to be dismissed for want of bonafide. It is an after thought which would show the malafides of the petitioner and therefore the petition has to be dismissed for want of bonafide. 2 [b] It is further stated that the reasons assigned in the petition for condoning the delay of 53 days cannot be accepted for condoning the delay of 1165 days, merely by filing an amendment petition and this would go to show that only to make over the inordinate delay of 1165 days, the petitioner has initially filed a petition stating only 53 days and later rectifying the same by way of an amendment application, waiting for the counsel for the respondent to identify the actual delay. Hence, the petition may be dismissed. 3. The learned counsel for the petitioner Ms.A.L.Ganthimathi would contend that the allegations in the affidavit would go a long way to show that as a man of about 66 years, he was indisposed and bedridden and hence he could not prefer appeal and that the bonafides could be ascertained from the circumstances. It is also stated that the reasons adduced in the affidavit constitute the sufficient cause and that the rights of the respondents have not been prejudiced and hence the delay deserves to be condoned. 4. Per contra, the learned Senior Counsel Mr.R.Gandhi appearing for the respondent would contend that the affidavit is silent about the nature of illness sustained by the petitioner, that a bare reading of the contents of the affidavit would show that the reasons are false, that there could not be any valid ground to discern the delay as a bonafide one and that the inordinate delay could not be condoned for the absence of proper reasons. 5. The learned counsel for the petitioner placed reliance upon a decision of Supreme Court in 1998 (7) SCC 123 [N.Balakrishnan V.M.Krishnamurthy] in wihch Their Lordships were pleased to observe that in the matter of condonation of delay, acceptability of the explanation for the delay is the sole criterion and length of delay is not relevant and in the absence of anything showing malafide or deliberate delay as a dilatory tactic, court should normally condone the delay. 6. In 2008 (3) SCC 257 [Sainik Security V. Sheela Bai and Others] the Supreme Court was satified with the reasons assigned in the affidavit for the delay of 769 days and the same was condoned on payment of costs of Rs.10,000/-. 6. In 2008 (3) SCC 257 [Sainik Security V. Sheela Bai and Others] the Supreme Court was satified with the reasons assigned in the affidavit for the delay of 769 days and the same was condoned on payment of costs of Rs.10,000/-. The Apex Court in 2002 (1) CTC 769 [Ram Nath Sao @ Ram Nath Sahu v. Gobardhan Sao] has held that the expression of sufficient cause in connection with delay in filing application to set aside abatement or other similar provision should receive liberal construction so as to advance justice, when no negligence, inaction or want of bonafide is imputable to party and whether explanation for delay would constitute sufficient cause will depend upon facts of each case and that the Courts should not proceed with tendency of finding fault with cause shown and reject peittion in over jubilation of disposal drive. The Division Bench of this Court in a decision reported in 2005 (2) CTC 766 [Mohammed Aslam and others v. C.N.A. Gowdhaman] has observed that in every case of delay, there may be some lapse on the part of the litigants concerned and delay will be condoned if explanation does not smack malafide and it is not put forth as part of dilatory strategy. 7. Repelling the contention of the learned counsel for the petitioner, the learned Senior counsel for the respondent would cite certain authorities to support his version. In MANU/SC/4694/2008 [Pundlik Jalam Patil (I) by Lrs. V. Exe. Eng. Jalgaon Medium Project and Anr.], the Supreme Court has observed that a party taking a false stand to get rid off the bar of limitation should not be encouraged to get any premium on the false hood on his part by condoning the delay. 8. A Division Bench of this Court in 2008 (5) CTC 651 [Union Bank of India v. K.R.Jewellers and Others] has held that when there was no satisfactory explanation by the respondents for the inordinate delay of 1287 days, it was very unfair for the Debt Recovery Appellate Tribunal to condone the delay, that mere allegation of negligence levelled against the learned counsel cannot be a sufficient reason to condone the delay. The Apex Court in 2008 (5) CTC 663 [Pundlik Jalam Patil (D) by LRs V. Exe. Eng. The Apex Court in 2008 (5) CTC 663 [Pundlik Jalam Patil (D) by LRs V. Exe. Eng. Jalgaon Medium Project and another] has ruled that where there is no sufficient cause for condoning the delay but delay was condoned, it is a case of discretion not being exercised judicially and the condoning delay is vulnerable and susceptible for correction by superior Court and an unlimited and perpetual threat of legal action creates insecurity and uncertainty and object for fixing time limit for litigation is based on public policy. 9. In a decision of mine, reported in 2008 (5) CTC 438 [Dhanalakshmi Financiers V. Soundarammal] after referring and following decisions of Supreme Court and this Court, I have observed that even if this Court applies different yardstick to consider the pettion to condone the delay in representation of the papers, still it has to be shown by the plaintiff that there was no lack of bonafides on his part nor any attempt to deceive the Court. 10. Adverting to the facts of the present case, the Court has to see whether they contain truth. It is the case of the petitioner that since was seriously ill and bedridden for three years, he could not take any steps to file the first appeal. The Affidavit is significantly silent about the nature of illness. The petitioner has failed to mention specifically about the illness with which he suffered. As pointed out by the learned counsel for the respondent, when the allegations in the affidavit have been mentioned for the condonation of delay of 53 days alone, as was originally mentioned in the affidavit, when later the affidavit and the petition were amended by filing an amendment application, whether they could be equally applicable to condone the delay of 1165 days is the question. Even though it is stated that for the past three years the petitioner was bedridden, still he came forward seeking the Court to condone the delay of 53 days alone and only after it was indicated by the respondents side, the amendment has been made. 11. Firstly, this Court is not at all satisfied with the reasons assigned in the affidavit since it is not believable that the defeated party namely the petitioner/plaintiff got defeated in the suit would be approached by the other side that they would come to terms for settlement and such impression was bonafide. 11. Firstly, this Court is not at all satisfied with the reasons assigned in the affidavit since it is not believable that the defeated party namely the petitioner/plaintiff got defeated in the suit would be approached by the other side that they would come to terms for settlement and such impression was bonafide. Further, having failed to mention the specific illness, the petitioner has preferred for condonation of delay. Nextly, the other allegations in the affidavit stand unamended while the duration of delay alone was sought to be amended. Hence, the reasons alleged for condonation of delay of 53 days cannot be accepted to condone the delay of 1165 days which is a long and inordinate delay. 12. In the considered opinion of this Court, the delay remains unexplained by the petitioner and the Court could not find any sufficient cause on the part of the petitioner for the delay There is no valid ground for condonation of the delay. The petition suffers dismissal. 13. In the result, the Miscellaneous Petition is dismissed. No costs.