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2013 DIGILAW 1757 (MAD)

V. K. Ramamoorthy v. M. K. Chandrabai

2013-04-23

G.RAJASURIA

body2013
Judgment :- 1. This second appeal is focussed by D2, animadverting upon the judgment and decree dated 28.03.2012 passed by the learned District Judge, Tiruvallur in A.S.No.3 of 2011 in dismissing the appeal as barred by limitation and thereby confirming the common judgment and decree dated 22.01.2010 passed by the learned Subordinate Judge, Poonamallee in O.S.No.203 of 1996. 2. The parties are referred to here under according to their litigative status and ranking before the trial Court. 3. The germane facts, absolutely necessary for the disposal of this second appeal as well as the two miscellaneous petitions would run thus: (a) As many as eight plaintiffs, filed the suit seeking the following reliefs: - for a declaration that the plaintiffs 1 to 7 are the owners of the suit property situate at 82, Maduraivoil village, Chengai MGR District comprised in S.No.13/1A1 13/1A2, 13/1B, 13/2 and 13/3 measuring an extent of 26.50 acres or thereabout more fully described in the schedule here under and consequentially - for a permanent injunction restraining the defendants their men, agents servants or any person or persons from interfering with the plaintiffs peaceful possession and enjoyment of the suit property perpetually more fully described in the plaint schedule here under: - grant such further or other reliefs. -cost of the suit. (extracted as such) (b) D1 filed the written statement, which was adopted by D2, who is the sole appellant in this second appeal. (c) The trial court framed the issues. (d) Up went the trial, during which, on the plaintiff's side P.Ws.1 and 2 were examined; and Exs.A1 to A12 were marked; on the defendants' side, D.W.1 was examined and Exs.B1 to B49 were marked. 4. Ultimately the trial Court decreed the suit; as against which appeal was filed by D2; D1 died pendente lite. The first appellate court after hearing both sides, dismissed the appeal on the sole ground that the appeal was filed without seeking to get the delay of three days' condoned. 5. Being aggrieved by and dissatisfied with the same, the appellant herein-V.K.Ramamoorthy filed earlier CRP (NPD) No.2046 of 2012 before this court and that CRP was disposed of vide order dated 31.07.2012 giving him opportunity to file second appeal as against the judgment and decree of the first appeal. 5. Being aggrieved by and dissatisfied with the same, the appellant herein-V.K.Ramamoorthy filed earlier CRP (NPD) No.2046 of 2012 before this court and that CRP was disposed of vide order dated 31.07.2012 giving him opportunity to file second appeal as against the judgment and decree of the first appeal. As such, this second appeal has been focussed by D2 setting out various grounds and also suggesting the following substantial questions of law: 1. Whether the lower appellate court was right in dismissing the appeal as barred by limitation? 2. Whether the appellant was not entitled to computation of period of limitation on the basis of decree obtained in respect of the first application for copy of decree, more so since the same had been with an endorsement to that effect? 3. Whether the lower appellate court had not erred in holding that the benefit of computation of limitation with respect to decree obtained first cannot be granted in the absence of all application, more so since the lower appellate court had directed registering the appeal which would amount to implied grant of permission/leave? 4. Whether the lower appellate court had not erred in denying the benefit of exclusion of intervening weekend holidays in filing the copy application for computation of period of limitation? 5. Without prejudice to the above, whether the lower appellate court had not erred in defacing the appeal without granting the appellant an opportunity of filing appropriate application for condonation of the delay? 6. Whether the lower appellate court had not erred in not condoning the delay if any, without insisting on an application in view of the facts and of the case? 7. Whether the lower appellate court after holding that there was a delay in presentation of the appeal had not erred in not returning the appeal papers for proper presentation? 8. Whether the lower appellate court had jurisdiction and power to entertain an application to deface an appeal after it had been entertained and registered as A.S.No.3 of 2011? 9. Whether the courts below were right in passing a decree and judgment in favour of the 6th respondent herein in the absence of any prayer? 10. Whether the lower appellate court had not erred in not exercising its inherent power more so as without power more so as findings of the trial court are vitiated for ignoring material facts resulting in error of law? 10. Whether the lower appellate court had not erred in not exercising its inherent power more so as without power more so as findings of the trial court are vitiated for ignoring material facts resulting in error of law? (extracted as such) 6. In the meanwhile, on receipt of the notice in this second appeal, the sixth respondent/eighth plaintiff filed M.P.No.1 of 2013 under Order 6 Rule 16 r/w Section 151 of the CPC seeking the following reliefs: "To strike off the second appeal No.981 of 2012" Subsequently, M.P.No.2 of 2013 has been filed by the same sixth respondent/eighth plaintiff seeking the following relief: "To direct the first respondent/appellant to deposit the sum of Rs.1,12,09,983/- (together with amounts received by way of interest) received by the first respondent/appellant and his sibling as compensation from the land acquisition authorities, together with interest thereon at such rate that may be fixed by this Hon'ble Court computed from the date of the receipt of the said sum till the date of depositing the same in court, to the credit of S.A.No.981 of 2012 pending on the file of this court within a time limit that may be fixed by this Court, failing which this court may be pleased to strike off the second appeal in S.A.No.981 of 2012." (extracted as such) 7. Counters filed in respect of these petitions. 8. On hearing both sides, I decided to formulate the following substantial questions of law to the knowledge of both sides. 1. Whether the first appellate court was justified in dismissing the appeal on the ground of limitation, even though initially there had been return of the appeal memorandum on the ground of limitation and subsequently, after hearing the advocate of the appellant and on office note, there was an order numbering the appeal? 2. Whether an opportunity has to be given to the appellant-V.K.Ramamoorthy to file an application to get the delay condoned ex post facto in filing the first appeal and also for the purpose of enabling him to prosecute the first appeal afresh before the first appellate court? 3. 2. Whether an opportunity has to be given to the appellant-V.K.Ramamoorthy to file an application to get the delay condoned ex post facto in filing the first appeal and also for the purpose of enabling him to prosecute the first appeal afresh before the first appellate court? 3. Whether the sixth respondent/8th plaintiff was justified in its M.P.No.2 of 2013 in seeking an order to direct the appellant herein to deposit a sum of Rs.1,12,09,983/-as a sine qua non for prosecuting the matter further and whether the M.P.No.1 of 2013 to get struck down the second appeal in limini is tenable? 9. The learned counsel for the appellant herein would pyramid his argument, which could succinctly and precisely be set out thus: (a) The first appellate court initially returned the memorandum of first appeal raising various queries including the point relating to limitation. Whereupon the matter was represented; the office had put up a note as under: "On appeal from the decree and judgment dated 22.01.2010 in O.S.No.339 of 1994 of Sub Judge, Poonamallee. The appellant filed an appeal before this court on 4.3.2010. At the time of filing of appeal two sets of certified copies of decree and judgment were filed. In the said two sets of certified copies there is a delay in preferring the appeal.” Date of judgment : 22.01.2010 CA filed on : 28.01.2010 C.A.Ready on : 4.2.2010 (4 days delay in preferring the appeal) Another CA filed on 25.1.2010 Ready on 4.2.2010 Filed on 26.4.2010 (After filing the appeal, copies were filed. Hence there is a delay in preferring the appeal) In both the copies of judgment and decree there was a delay in preferring the appeal. But the counsel has filed a citation before this court i.e. In AIR 1985 Orissa 247 and AIR 1961 MP 244 stating that there is no delay in preferring the appeal and the counsel for the appellant represented that the appeal may be called in open court for the limitation purpose. Submitted for orders. Sd/- Sherishtadar 22.11.2010." (extracted as such) Whereupon, the Advocate who appeared for the appellant therein made his submissions. Thereafter the court passed the following order: "Heard. Submitted for orders. Sd/- Sherishtadar 22.11.2010." (extracted as such) Whereupon, the Advocate who appeared for the appellant therein made his submissions. Thereafter the court passed the following order: "Heard. Register the A.S." As such, the learned Judge after application of mind held that there was no delay and ordered the appeal to be numbered; however, subsequently there was totallytopsy turvy dom and the learned Judge dismissed the main appeal on the ground of the appellant having not taken steps to get the three days' delay condoned in filing the appeal. (b) Even for argument's sake, it is taken that there was delay, it could only be taken as three days' delay and the same was insignificant and that could be condoned even by this court straightaway. (c) Regarding the deposit of money is concerned, the appellant herein received by cheque only a sum of Rs.18,16,283/- and after deducting the income tax at source, he received only around Rs.17,00,000/- [Rupees seventeen lakhs only] and the remaining amount out of the sum of Rs.1,12,09,983/- which was assessed as compensation in the land acquisition proceedings initiated by the Highways Department, was received by the other legal heirs of the deceased Jayalakshmi (D1) and they are not parties to this case here at all. Accordingly, he would pray for allowing this second appeal and for the dismissal of the two petitions filed by the sixth respondent/eighth plaintiff. 10. Per contra, in a bid to torpedo and pulverise, slap down and inveigh the arguments as put forth and set forth on the side of the appellant, the learned counsel for R6 would advance his argument, which could tersely and briefly be set out thus: (a) The first appellate court in its judgment candidly and categorically, pulling no punches, pointed out that despite opportunity having been given to the appellant even during the pendency of the first appeal, to file an application to get the delay condonedex post facto he had not chosen to do so and in such a case, at present he cannot seek any indulgence of this court. (b) Part of the subject matter of the suit, viz., a piece of land was acquired by the Highways Department and a huge compensation of Rs.1,12,09,983/- [Rupees one crore twelve lakhs nine thousand nine hundred and eighty three only] was given by the Highways Department and the appellant should not have received it at all or he should have at least after receipt deposited it in court. As such, without depositing the said amount being part of the subject matter of the suit into court, he cannot prosecute this appeal and he ought not to have preferred the first appeal or participate in any of the proceedings in this lis. Accordingly, he would pray for the dismissal of the second appeal itself. 11. Regarding limitation is concerned, the learned counsel for R6 would submit that even for the three days' delay as found by the first appellate court, no application was filed to get it condoned by the 2nd defendant and as such, absolutely, there is no error in dismissing the first appeal on the ground of limitation. At any stage, the court can look into the limitation period and dismiss it and there is no embargo for the court to exercise its power under Section 3 of the Limitation Act. 12. Indubitably and indisputably, the facts relating to the disposal of the first appeal would run thus: Initially as pointed out by the learned counsel for the appellant herein, the first appeal was presented and it was returned for complying with certain remarks including the one relating to limitation. However, subsequently, as pointed out supra, the office of the first appellate court had put up office note and whereupon, the Judge concerned heard the Advocate for the appellant and simply directed the office to number the appeal. Subsequently, the 6th respondent/8th plaintiff filed I.A.No.80 of 2011 seeking the following prayer: "to deface the appeal filed by the first respondent in SR No.970 of 2010 and registered A.S.No.3 of 2011 on the file of this court by striking out the same as time barred one". (extracted as such) In connection with that I.A only the court passed the detailed order dated 28.3.2012 allowing the said application by giving a finding that there was three days' delay in preferring the appeal. 13. (extracted as such) In connection with that I.A only the court passed the detailed order dated 28.3.2012 allowing the said application by giving a finding that there was three days' delay in preferring the appeal. 13. Regarding the quantum of three days' delay is concerned, it is no more res integra because nothing has been highlighted before me that the delay might be more than three days' and for that matter even the counsel appearing for second appellant herein cannot put forth any argument to show-up and point-up, indicate and exemplify that the computation of three days' delay was erroneous. In such a case, I can proceed further in this factual matrix that as of now, it is well known that the first appeal was filed with three days' delay; however, at that time, no application was filed to get the delay condoned. 14. According to the learned counsel for the appellant herein, during the pendency of I.A.No.80 of 2011 or the first appeal, no opportunity was given to the appellant herein to file an application to get the delay of three days' condoned ex post facto; Had such an opportunity been given either at the time of numbering the appeal or during the pendency of the appeal, the appellant herein would have complied with that and got that insignificant delay of three days' condoned. But that opportunity was not given. The appellant has got the right to get his lis adjudicated before the first appellate court on merits because the first appellate court is the last court of facts. 15. At this juncture, I would like to recollect the maxim – de minimis non curat lax - The law does not care for, or take notice of, very small or trifling matters, ; while so, I cannot oblivious of the maxims (i)Vigilantibus et non dormientibus jura subveniunt – The laws aid the vigilant, not those who sleep and (ii) Interest reipublicae ut sit finis litium - It concerns the state that there be an end of law suit. 16. Taking into consideration all these things, a balance has to be struck. 17. This court while exercising its power in connection with this second appeal, cannot simply condone the delay of three days' ignoring the punctilious of court procedures. 16. Taking into consideration all these things, a balance has to be struck. 17. This court while exercising its power in connection with this second appeal, cannot simply condone the delay of three days' ignoring the punctilious of court procedures. However, this court has to give an opportunity to the appellant herein for filing necessary application to get the delay of three days' condoned ex post facto and for enabling him to prosecute the first appeal in AS No.3 of 2011 afresh and get disposed of on merits. 18. On the plaintiff's side, it was argued that repeatedly opportunity could not be given to the appellant herein. Notwithstanding the same, I am of the considered view that in the interest of audi alteram partem, such an opportunity has to be given. In fact, the first appellate court in the order passed in I.A.No.80 of 2011 observed thus: "Inspite of the return made by the court the first respondent did not file an application to condone the delay in filing the appeal under Order 41 Rule 3 (A) of CPC and contended that appeal is presented within the time. Even though opportunity was granted by court, the first respondent failed to avail the opportunity to rectify the defect ......." However, nothing has been brought to my notice any docket entry to that effect was made during the pendency of the appeal; in fact no opportunity was given to the petitioner/appellant herein to file an application to get the delay condoned ex post facto. Paradoxically the first appellate court, after the return of the appeal memorandum on the ground of limitation, subsequently numbered the appeal without insisting for a petition to get the delay condoned. Only on the sixth respondent/eighth plaintiff having filed the I.A.No.80 of 2011, the first appellate court dismissed the appeal on the ground of limitation. 19. Actus curiae neminem gravabit – [An act of the Court will not prejudice no one]. Had the appellate court passed order before numbering the appeal, certainly this impasse would not have resulted. 20. It is a common or garden principle of law that if the court finds at any stage, in the interest of justice to give any direction to a party, then the same could be done. Even condoning of delay ex post facto is not something unknown to law; but it should be an exception and not a rule. 21. 20. It is a common or garden principle of law that if the court finds at any stage, in the interest of justice to give any direction to a party, then the same could be done. Even condoning of delay ex post facto is not something unknown to law; but it should be an exception and not a rule. 21. In this case, my above discussion as well as the records including the recitals extracted supra would display and demonstrate that it is a borderline case where only a delay of three days' was involved and I do not see that there was any mala fide intention on the part of the appellant in not filing any application to get such delay condoned. It appears the appellant was advised to the effect that there was no delay. 22. At this juncture, my mind is reminiscent and redolent of the following maxims: 1. Ignorantia legis neminem excusat – Ignorance of law excuses no one. 2. Ignorantia excusatur non juris sed facti – Ignorance of facts excused but no ignorance of law. 3. Ignorantia facti excusat, ignorantia juris non excusat – Ignorance of fact excuses; ignorance of law does not excuse. 4. Ignorantia juris quod quisque scire tenetur, neminem excusat : The ignorance of law which every one is expected to know is not an excuse. Here, it has to be seen as to whether the petitioner was ignorant of the law, which everyone is expected to know. My discussion supra would indicate and exemplify that in view of the legal complications only the appellant could not file the application earlier to get the delay condoned. 23. Wherefore, I am of the considered view that an opportunity should necessarily be given as otherwise, he would lose the opportunity of getting his appeal decided by the last court of facts, viz., the first appellate court, once and for all. Accordingly, the order of the first appellate court should be set aside and the appeal should be remitted back to the first appellate court giving opportunity to the appellant herein to file necessary application to get the delay of 3 days' condoned, ex post facto. 24. Accordingly, the order of the first appellate court should be set aside and the appeal should be remitted back to the first appellate court giving opportunity to the appellant herein to file necessary application to get the delay of 3 days' condoned, ex post facto. 24. Even though on the side of R6/eighth plaintiff it has been contended that a sum of 1,12,09,983/- was received by the appellant as compensation from the Highways Authority in connection with the acquisition of a part of the subject matter of the suit property, the entire amount was not received by the appellant-V.K.Ramamoorthy but the other legal heirs of D1 also received it and except V.K.Ramamoorthy, no other legal heirs of Jayalakshmi (D1) is before this court. 25. Both sides in unison would submit that the other legal heirs are parties in some other litigation and in such a case, I could see considerable force in the submission of the learned counsel for the appellant herein that the entire amount of compensation released by the Highways Department cannot be directed to be deposited by Ramamoorthy alone in civil court. Accordingly I am of the considered view that a sum of Rs.17,00,000/- [Rupees seventeen lakhs only] as admitted by the appellant could be ordered to be deposited in the first appellate court. This court cannot also with its fingers crossed simply overlook the happenings, which took place pendente lite. 26. The learned counsel for the appellant would argue that this court without looking into the merit of the case of either side, simply direct the appellant to deposit in court any amount assine qua non for prosecuting the appeal and that if it is done so, it would be onerous. 27. I am of the considered view that at this stage, this court need not look into the merit of the case of the respective parties, so to say, who would win or who would lose the case ultimately. 28. Incontrovertibly and unarguably, obviously and axiomatically, pending litigation, part of the subject matter was acquired by the Government and compensation was awarded in favour of the legal heirs of deceased D1 and D2/the appellant herein as per his admission, he got around Rs.17,00,000/-[Rupees seventeen lakhs only] and a cumulative reading of the following provisions of law: 1. Section 94 (e) of the Code of Civil Procedure, 2. Section 94 (e) of the Code of Civil Procedure, 2. Section 144 of the Code of Civil Procedure, the concept restitution as found embodied in it, 3. Order 39 Rule 7 and 10 of the Code of Civil Procedure and 4. Section 151 of the Code of Civil Procedure would disambiguate the ambiguity concerning the power of the court to pass interim orders to bring into court deposit the compensation amount received pendente lite by one of the parties to the lis, without the permission of the court or taking the court into confidence. The original suit is for declaration of title to the suit property apart from other reliefs sought in the plaint. Hence, even by phantasmagorical thoughts, it cannot be visualized that the court has got no power to order the appellant herein to bring into court, the part of the subject matter of the suit, which is now in the form of cash in the hands of the appellant. In such a case that amount should be brought into the court deposit as otherwise, the court would not be able to adjudge the lis comprehensively and finally avoiding multiplicity of proceedings as contemplated under law. 29. I would also like to observe that since the delay was only three days', it is the normal practice of the court to condone it, as it is a pocu curante one but this court itself cannot do so, because the lower court should not be bypassed and the formal procedures should also be complied with and a party cannot be given carte blanche to get absolved from complying with that. As such, with this in mind, the judgment and decree of the first appellate court has to be set aside and the appeal has to be remitted back to the first appellate court, giving an opportunity to the appellant herein for filing necessary application to get the delay of three days' condonedex post facto. As such, with this in mind, the judgment and decree of the first appellate court has to be set aside and the appeal has to be remitted back to the first appellate court, giving an opportunity to the appellant herein for filing necessary application to get the delay of three days' condonedex post facto. On the first appellate court, condoning such meagre delay, it shall take up the appeal and decide it on merits within a time frame of three months' subject to the condition that the appellant herein should deposit a sum of Rs.17,00,000/-[Rupees seventeen lakhs only] in the first appellate court itself on or before 4.6.2013 along with the filing of the I.A to get the delay of three days' condoned; whereupon, the court shall do well to see that the said amount is deposited in a Nationalised Bank in an interest bearing fixed deposit till pending disposal of the appeal. The court shall do well to see that from the date of condoning of delay, the appeal itself shall be disposed of within a period of three months. Steps also shall be taken to dispose of the said delay application to be filed as above as expeditiously as possible, preferably, within a period of one month from the date of filing of such application. 30. Accordingly, this second appeal is disposed of. However, there shall be no order as to costs. Consequently, the connected miscellaneous petitions are closed.