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2014 DIGILAW 2785 (MAD)

Madurai Municipal Corporation v. G. Srither

2014-08-21

V.M.VELUMANI

body2014
Judgment : 1. This Civil Revision Petition has been filed to set aside the fair and decretal order dated 21.03.2014, made in I.A.No.111 of 2013 in Tax C.M.A.No. of 2013. 2. The petitioner, the Madurai Municipal Corporation filed Tax C.M.A. along with an application in I.A.No.111 of 2013, to condone the delay of 549 days in filing the appeal. 3. According to the petitioner, the concerned files were sent to the Standing Counsel for the Corporation in the High Court, to get the opinion. Since number of cases filed by the respondents in the High Court, the petitioner could not collect the file from his Standing Counsel and file the appeal immediately. The petitioner has filed the appeal after taking all the files, filed appeal with the application to condone the delay of 549 days. The delay is neither wilful nor wanton. If the delay is not condoned, the petitioner will be put to irreparable loss and hardship. Therefore, he prayed for allowing the application to condone the delay. 4. The respondents opposed the same on various grounds by filing counter affidavit. 5. The learned Judge after considering the averments in the affidavit and in the counter affidavit and the various Judgments relied on by the parties, dismissed the application holding that each day delay was not properly explained by the petitioner. Against the said order of dismissal of the application, the present civil revision petition is filed. 6. Though notice was served on the respondents and their names are printed in the cause list, they have not chosen to appear either in person or through counsel. 7. Heard Mr.R.Murali, learned counsel appearing for the revision petitioner. 8. The learned counsel for the petitioner contended that the length of delay is not the criteria, but the Courts must see whether sufficient reason has been given for condonation of delay. 9. In support of his submission, the learned counsel for the revision petitioner relied on the following Judgments: (i) N. Balakrishnan v. M. Krishnamurthy [ 1998 (7) SCC 123 ], wherein in paragraph Nos.9 and 10, the Hon'ble Apex Court has held as under:- "9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court. 10. The reason for such a different stance is thus: The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause." (ii) R.M.Arunachalam Vs. PL.R.Arunachalam Chettiar and Others [AIJO 2000 MHC 717], wherein in paragraph No.7, it has been held as follows:- "7. The upper forum of law have more often held that even if the delay is not properly explained, the petitioner should not be punished with denial of opportunity to prosecute the case, wherein his valuable rights are involved and when once such petitioners are not allowed to participate in the further proceedings by dismissing the condonation applications filed to condone the delay on certain technicalities, the other side whether has any genuine rights or not, wins the entire case and the petitioner loses all his rights in the suit and to avoid such calamities, the petitioners could not be punished with costs and not with denial of opportunity to prosecute the case wherein his valuable rights are involved." (iii) N.Balakrishan Vs. M.Krishnamurthy [1998 AIR (SCW) 3139], wherein in paragraph No.9, it has been held as follows:- "9. It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refuses to condone the delay. In such cases, the superior Court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court." (iv) Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and Others [2013 (12) SCC 649], wherein in paragraph Nos.8 and 9, it has been held as follows:- "8. Before we delve into the factual scenario and the defensibility of the order condoning delay, it is seemly to state the obligation of the Court while dealing with an application for condonation of delay and the approach to be adopted while considering the grounds for condonation of such colossal delay. 9. In Collector (LA) v. Katiji [ 1987 (2) SCC 107 : 1989 SCC (Tax) 172], a two-Judge Bench observed that : (SCC p.108, para 3) "3. The legislature has conferred the power to condone the delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on merits. The legislature has conferred the power to condone the delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on merits. The expression 'sufficient cause' employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which sub serves the ends of justice - that being the life-purpose for the existence of the institution of courts." (emphasis in original) The learned Judges emphasised on adoption of a liberal approach while dealing with the applications for condonation of delay as ordinarily a litigant does not stand to benefit by lodging an appeal late and refusal to condone delay can result in a meritorious matter being thrown out at the very threshold and the cause of justice being defeated." 10. Now, the Courts have held that the application for condonation of delay must be liberally considered and the parties must be given an opportunity to put forth their case on merits. On perusing the affidavit filed by the petitioner, it is seen that the petitioner has given sufficient reason to condone the delay. The principles laid down in the Judgments relied on by the learned counsel for the petitioner squarely applies to the facts of the present case. The learned Judge has erred in holding that each day delay must be explained. 11. For the above reason, the order dated 21.03.2014, in I.A.No.111 of 2013 in Tax C.M.A.No. of 2013, passed by the learned Principal District Judge, Madurai, is liable to be set aside and accordingly, set aside. This civil revision petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.