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2014 DIGILAW 3684 (MAD)

P. Chockalingam v. Manjula

2014-10-07

K.KALYANASUNDARAM

body2014
Order 1. Challenging the order passed in C.M.P.Nos.1323 and 1324 of 2013 in A.S.(SR) Nos.48303 and 48304 of 2013, these revision petitions have been filed. 2. Petitioner is the plaintiff in O.S.No.2205 of 2007 on the file of XVIII Assistant Judge, City Civil Court, Chennai. The suit was filed against the respondents in C.R.P.No.3711 of 2014 for declaration declaring that the auction held on 29.03.2007 is null and void and to restrain the auctioneer from executing the sale deed. In O.S.No.4585 of 2007, the petitioner is the defendant. The suit was filed by the respondent in C.R.P.No.3710 of 2014 for recovery of possession. The learned XVIII Assistant Judge, City Civil Court, by judgment dated 28.11.2008 dismissed the suit filed by the petitioner and decreed the suit filed by the respondent in C.R.P.No.3710 of 2014. 3. Aggrieved by the judgment and decrees, the petitioner filed appeals before the Principal Judge, City Civil Court, Chennai. Miscellaneous petition in C.M.P.No.1323 of 2013 was filed to condone the delay of 1752 days in preferring the appeal against the judgment and decree in O.S.No.4585 of 2007 and C.M.P.No.1324 of 2013 was filed to condone the delay of 1753 days in filing the appeal against the judgment and decree passed in O.S.No.2205 of 2007. 4. The petitioner has stated in the affidavit filed in the delay condonation petitions that after disposal of both the suits, as per the advice of his counsel, he filed a suit in O.S.No.7726 of 2010 for redemption of mortgaged property; that the suit was also dismissed and the appeal filed against the judgment and decree was pending in the delay condonation stage. It is further stated in the affidavit that the respondent in C.R.P.No.3710 of 2013 has levied execution petition in E.P.No.2141 of 2009 and thereafter, the petitioner approached the present counsel for redressal of his grievance to redeem the property. It is stated in paragraph No.8 of the affidavit that due to the advice given by the earlier counsel, the petitioner did not file appeals against the common judgment passed in O.S.Nos.4585 and 2205 of 2007 and only due to the advice of the counsel he filed another suit and did not file any appeal against the dismissal of his suit. Resisting the petitions, the respondent filed counter and contested the matter. The learned Principal Judge, City Civil Court, Chennai, dismissed both the petitions. Resisting the petitions, the respondent filed counter and contested the matter. The learned Principal Judge, City Civil Court, Chennai, dismissed both the petitions. Aggrieved by the said order, the present revisions are filed. 5. Heard Mr.S.Subbiah, learned counsel appearing for the petitioner and Mr.G.Surya Narayanan, learned counsel appearing for the respondents and perused the records. 6. Learned counsel for the petitioner submitted that admittedly petitioner is the owner of the property and the property was mortgaged to one Mrs.Vennila, at the time of borrowing a loan of Rs.2 lakhs and that the mortgagee had sold the property by a public auction held on 29.03.2007 without following the procedure established by law. It is further submitted that only due to the incorrect advice given by the counsel for the petitioner, he did not file appeals in time and to protect the interest of the petitioner in the immovable property, he should be given an opportunity to challenge the judgments passed in the suits. The learned counsel further submitted that there is no negligence or deliberate inaction on the part of the petitioner in filing the appeals, but however as per the advice of his counsel, he instituted a suit in O.S.No.7726 of 2010, by paying a Court fee for Rs.2,90,000/-and also spent huge money for other legal proceedings. It is further submitted that the petitioner is entitled for proper adjudication in the appeals and for the delay, the respondent can be compensated in terms of money. 7. The learned counsel has relied upon the judgments of the Honourable Apex Court and this Court reported in (i) 2013(5) CTC 547 -Esha Bhattacharjee vs. Managing Committee of Raghunathpur, Nafar Academy and Others (ii) (2012) 9 Supreme Court Cases 512 -Central Bureau of Investigation, Hyderabad vs. K. Narayana Rao, (iii) (2014) 6 MLJ 526 -Bharat Petroleum Corporation Ltd., rep.by its Managing Director P.Anilkumar, Chennai vs. C.S.Prakasa Rao and (iv) (2009) 3 MLJ 1120 -P.Srinivasan and another vs. P.Gopal and another for the proposition that the Court can adopt liberal approach in condoning the delay. 8. Per contra, learned counsel for the respondents submitted that the respondent in C.R.P.No.3710 of 2014 purchased the property in a public auction on 29.3.2007 and filed a suit for recovery of possession in the year 2007. 8. Per contra, learned counsel for the respondents submitted that the respondent in C.R.P.No.3710 of 2014 purchased the property in a public auction on 29.3.2007 and filed a suit for recovery of possession in the year 2007. The petitioner also filed a suit challenging the sale in the year 2007 and even at that time, the petitioner was aware that sale deed was executed in favour of the respondent in C.R.P.NO.3710 of 2014. It is further submitted that before the property was sold in public auction, proper notice was served on the petitioner and the Court has found that the sale was proper. 9. The learned counsel further submitted that as per the decree passed in O.S.No.4585 of 2007, the respondent in C.R.P.No.3710 of 2014 had levied execution petition on 29.10.2009. The petitioner has received notice in the execution petition and even then he did not take steps to file an appeal immediately. But, admittedly the petitioner filed an application for certified copy of the judgment and decree only on 12.09.2013. The learned counsel further submitted that the petitioner has not shown sufficient cause for condoning the enormous delay; that the petitioner has not shown bona fide reasons and that the delay occurred due to callous, inaction and gross negligence on the part of the petitioner and hence the delay cannot be condoned. The learned counsel has relied upon the judgment of the Honourable Apex Court reported in (2013) 14 SCC 81-Basawaraj and another vs. Special Land Acquisition Officer. 10. It is seen from the records that the respondent in C.R.P.No.2710 of 2014 had purchased the property through a public auction held on 29.03.2007. The learned XVIII Assistant Judge, City Civil Court, has held that the public auction was conducted in the presence of the petitioner and after considering the evidence, the learned judge has held that the public sale is valid and it was done strictly by observing the procedure established in law. It is also not in dispute that the petitioner was aware of the sale deed executed in favour of the respondent. But according to the petitioner only due to the advice of his counsel, he did not file appeal in time. 11. In 2013(5) CTC 547 - Esha Bhattacharjee vs. Managing Committee of Raghunathpur, Nafar Academy and Others the Honourable Apex Court has held as follows: "15. But according to the petitioner only due to the advice of his counsel, he did not file appeal in time. 11. In 2013(5) CTC 547 - Esha Bhattacharjee vs. Managing Committee of Raghunathpur, Nafar Academy and Others the Honourable Apex Court has held as follows: "15. From the aforesaid authorities the principles that can broadly be culled out are: . . . . . . . . . . . . (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former Doctrine of prejudice is attracted, whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the Courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach." 12. In (2013) 14 SCC 81-Basawaraj and another vs. Special Land Acquisition Officer, the Honourable Apex Court has held as follows: "11. The expression "sufficient cause" should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned, whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible. (Vide Madanlal vs. Shyamlal- (2002) 1 SCC 535 and Ram Nath Sao vs. Gobardhan Sao - (2002) 3 SCC 195 ) 12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. "A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation'. The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce hit giving full effect to the same. "A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation'. The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce hit giving full effect to the same. The legal maxim Dura lex sed lex which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not a decisive factor to be considered while interpreting a statute." 13. In my considered opinion, the judgments reported in (2012) 9 Supreme Court Cases 512 Central Bureau of Investigation, Hyderabad vs. K. Narayana Rao and (2009) 3 MLJ 1120 -P.Srinivasan and another vs. P.Gopal and another are not applicable to the facts of this case. 14. The petitioner has filed the applications to condone the delay of 1752 and 1753 days, respectively, in filing the appeals. The only explanation given by the petitioner is that on the advice of his counsel, he did not file appeals in time. The reason given by the petitioner does not merit acceptance of this Court. In the light of the principles laid down by the Honourable Apex Court in 2013(5) CTC 547, there is distinction between condoning the inordinate delay and a delay of short duration or few days. While considering the delay condonation applications, the conduct, negligence, inaction, behaviour and attitude of a party are relevant factors to be taken into consideration. In my considered opinion the petitioner has not shown sufficient cause for condoning the delay and the explanation lacks bona fides. Hence I do not find any illegality or irregularity in the impugned orders. 15. In the result, the civil revision petitions are dismissed. No costs. Connected miscellaneous petition is dismissed.