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2013 DIGILAW 2659 (MAD)

N. C. S. Lakshmi v. Kanchana Karthikeyan

2013-07-25

M.JAICHANDREN, M.M.SUNDRESH

body2013
Judgment : M.M. Sundresh, J. 1. The petitioners herein, who are the defendants in the suit in C.S.No.258 of 2000, have come forward to file this application, seeking to condone the delay of 61 days, by way of defective presentation of the appeal. 2. Learned counsel for the petitioners would submit that the appeal was presented within time. It is the counsel, who had committed a mistake in not representing the appeal within the time granted by the Registry. For the mistake of the counsel, the petitioners cannot be found fault with. The petitioners have also paid the entire decree amount. Further more, the petitioners have got a very good case in the appeal, and therefore, the delay has to be condoned. In support of his contentions, he has placed reliance upon the judgment of the Apex Court in Indian Statistical Institute v. M/s.Associated Builders and Others reported in AIR 1978 335. 3. Per contra, the learned counsel for the respondent/plaintiff would submit that the very application filed itself is not maintainable in law. The delay is not 61 days, but, in fact, it is 1186 days. Admittedly, the appeal has been filed without even the judgment and decree. The petitioners/defendants have received the judgment and decree on 13.10.2009. However, for the reasons best known to them, they have filed the appeal, which is not maintainable in law, only with the memorandum of grounds, by affixing the court fee of Rs.20/-. In support of the said contention that the appeal filed itself is not maintainable, the learned counsel has placed reliance upon two decisions of this Court in [i] Rajarathnam v. Rajammal reported in 1982 MLJ 294 , and [ii] Alagappan Padayatchi, K. v. V.Alagappan Padayatchi reported in 1998-1-L.W.183. 4. It is seen that the respondent/plaintiff filed the suit in C.S.No.258 of 2000 for recovery of money, on a promissory note. The suit was decree ex parte originally. Thereafter, it was restored. Further, anex parte decree was passed on 13.12.2000. Once again, it was restored. Thereafter, it was taken up for trial. The judgment and decree was passed on 17.9.2009 in favour of the respondent, by decreeing the suit as prayed for. 5. The petitioners filed a Copy Application, which was received on 13.10.2009, by which the judgment and decree rendered in C.S.No.258 of 2000 was made available. Once again, it was restored. Thereafter, it was taken up for trial. The judgment and decree was passed on 17.9.2009 in favour of the respondent, by decreeing the suit as prayed for. 5. The petitioners filed a Copy Application, which was received on 13.10.2009, by which the judgment and decree rendered in C.S.No.258 of 2000 was made available. On 30.11.2009, the respondent filed an application, in which, notice was sent to the petitioners to pay the decree amount. Thereafter, the petitioners filed the appeal on 12.1.2010 challenging the judgment and decree rendered in C.S.No.258 of 2000, dated 17.09.2009, by merely enclosing the memorandum of grounds with the affixure of the court fee of Rs.20/-. Simultaneously, I.P.No.7 of 2010 was filed on the very same day for adjudicating as debtors. On 18.1.2010, the Registry returned the papers in O.S.A.SR.No.4033 of 2010, for proper presentation. 6. A public auction of the property was ordered by the Court in I.P.No.7 of 2010. The petitioners filed an application for stay, on 5.7.2011. On 6.7.2011, a conditional order was passed by a learned ingle Judge in Application No.303 of 2011. On 7.7.2011, a sum of Rs.10 lakhs was deposited by the petitioners, as per the conditional order, pursuant to which, the auction was postponed directing payment of balance amount on 27.7.2011. Thereafter, on 5.9.2011, Application No.371 of 2011 was filed by the petitioners seeking to condone the delay of 588 days in filing the application to set aside the ex parte order passed in I.P.No.7 of 2010. 7. After all the above said proceedings, the petitioners have filed the present petition on 21.2.2013, seeking to condone the defective presentation of the appeal in O.S.A.SR.No.4033 of 2010, on the ground that there is only a delay of 61 days. 8. The facts, narrated above, speak for themselves. Admittedly, in this case, the petitioners received the judgment and decree in C.S.No.258 of 2000, as early as on 13.10.2009. The appeal was sought to be presented with the mere memorandum of grounds, by affixing a paltry sum of Rs.20/-, as court fee. As such, the representation is not a 'defective representation', but 'not a presentation' in the eye of law. The appeal was sought to be presented with the mere memorandum of grounds, by affixing a paltry sum of Rs.20/-, as court fee. As such, the representation is not a 'defective representation', but 'not a presentation' in the eye of law. This Court is not able to appreciate the contention of the learned counsel for the petitioners that the mistake was on the part of the counsel, who had appeared at the relevant point of time, on behalf of the petitioners. It is, no doubt, true that the question of representation is between the court and the party who files such application seeking to condone the same. However, in the case on hand, the issue is as to whether the appeal petition, presented by the petitioner, is proper, or not. 9. It is apposite to extract Order 36, Rule 1 of the Original Side Rules, which deals with a memorandum of appeal, in the prescribed format. Order XXXVI, Rule 1: "A memorandum of appeal shall be filed in Form No.2 and shall be accompanied by a certified copy of the decree and judgment or order amounting to judgment appealed from, and a notice to the respondent in Form No.83 and also a copy thereof signed by the appellant or his advocate." Admittedly, in the case on hand, the petitioners have not complied with Rule 1 of Order 36 of the Original Side Rules. However, the present application has been filed on 21.2.2013. Therefore, we are of the considered view that the appeal, as filed originally, being not in conformity with Order 36, Rule 1 of the Original Side Rules, is not an appeal at all. In view of the said position, we are of the view that the delay is not 61 days, as alleged by the petitioners, but, in fact, it is 1186 days, as contended by the learned counsel for the respondent. Further more, even on facts, we are not satisfied with the reasons assigned for condonation of the delay. The suit was filed in the year 2000. At every stage, the petitioners were attempting to drag on the proceedings. The averments made in the affidavit filed in support of the petition seeking to condone the delay of 61 days are also very bald. For the fault of the petitioners, their counsel cannot be blamed. The suit was filed in the year 2000. At every stage, the petitioners were attempting to drag on the proceedings. The averments made in the affidavit filed in support of the petition seeking to condone the delay of 61 days are also very bald. For the fault of the petitioners, their counsel cannot be blamed. Further, the judgment relied upon by the petitioners in Indian Statistical Institute v. M/s.Associated Builders and Others reported in AIR 1978 335, is not applicable to the case on hand. In the said judgment, the Court was dealing with a case of a delay in representation and not the question as to whether the presentation is valid or not. 10. In fine, we do not find any reason to condone the delay. Accordingly, the petition stands dismissed. Consequently, O.S.A. SR. No.4033 of 2010, stands rejected. No costs.