Research › Search › Judgment

Madras High Court · body

2015 DIGILAW 2655 (MAD)

T. Periyasamy v. P. Sathishkumar

2015-07-29

M.DURAISWAMY

body2015
ORDER Aggrieved over the fair and final order passed in I.A.No.310 of 2014 in Unnumbered A.S, the defendants in O.S.No.542 of 2003, on the file of I Additional Sub Court, Erode, has filed the above Civil Revision Petition. 2. The plaintiff, represented by his mother and next friend Arukkani, filed a suit for partition and separate possession. The suit was contested by the defendants. 3. The trial Court, after taking into consideration of the oral and documentary evidence of both sides, dismissed the suit. Aggrieved over the dismissal of the suit in O.S.No.542 of 2003, the plaintiff, represented by his mother, filed an appeal in the year 2006 before the Principal District Court, Erode. The papers were returned by the Principal District Court, Erode for rectifying certain defects. Thereafter, the respondent/plaintiff re-presented the appeal papers with a delay of 3071 days. The respondent filed an application in I.A.No.310 of 2014 in unnumbered A.S.No. nil of 2015 to condone the delay of 3071 days in re-presenting the papers. 4. In the affidavit, filed in support of the petition, the respondent has stated that the papers were returned on 12.6.2006 for rectifying certain defects and 15 days time was given for representation. Further, the respondent has stated that subsequent to the filing of the appeal, he attained majority and as such, he instructed his mother to bring the birth certificate to re-present the papers with an application to declare him as major and due to ignorance of his mother, he could not obtain the birth certificate from the concerned authorities and failed to re-present the appeal within the time. 5. That apart, the respondent has also stated that he got the birth certificate on 12.11.2014 and immediately he re-presented the appeal papers. Hence, there was a delay of 3071 days. 6. The petitioners filed their counter disputing the averments stated in the affidavit, filed in support of the petition. Further, the petitioners have stated that the respondent attained majority about nine years prior to the filing of the application before the lower appellate court. In these circumstances, the petitioners prayed for dismissal of the application. 7. The lower Appellate Court, after taking into consideration the case of the respondent, confirmed the delay of 3071 days and allowed the application. Aggrieved over the same, the defendants filed the above Civil Revision Petition. 8. In these circumstances, the petitioners prayed for dismissal of the application. 7. The lower Appellate Court, after taking into consideration the case of the respondent, confirmed the delay of 3071 days and allowed the application. Aggrieved over the same, the defendants filed the above Civil Revision Petition. 8. Mr.N. Manokaran, learned counsel for the petitioners submitted that in the absence of any sufficient reason given by the respondent, the lower Appellate Court ought not to have condoned the inordinate delay of 3071 days in re-presenting the papers. Further, the learned counsel for the petitioners submitted that the reasons stated by the respondent in the affidavit, filed in support of the petition, cannot be accepted for the reason that the respondent was not prosecuting the matter in a diligent manner. In support of his contention, the learned counsel relied upon the following judgments: (i) 2015 (1) SCC 680 (H. Dohil Constructions Company Private Limited vs. Nahar Exports Limited and another), wherein the Apex Court has held as follows: 19. Having considered the respective submissions, on this question, we find that the submissions made on behalf of the appellant(s) are forceful. It is true that the delay in filing the appeals was only of 9 days and that the longer delay was only relating to the refiling of the appeal papers. But even if it is related to refilling of the appeals, the net result is that the appeals could be taken into records only when such a delay in refiling is condoned. Therefore, if the refiling had been made within the time granted by the Registry of the High Court, no fault can be found with anyone much less with the party concerned or whomsoever was entrusted with the filing of the papers into the Registry. But when an enormous delay of nearly five years occurred in the matter of refiling, it definitely calls for a closer scrutiny as to what was the cause which prevented the party concerned from refiling the papers in time to enable the Registry to process the papers and ascertain whether the papers were in order for the purpose of numbering the appeals. 20. In the case on hand, the delay in refilling was of 1727 days. 20. In the case on hand, the delay in refilling was of 1727 days. As rightly pointed out by the learned Senior Counsel for the appellant(s), the respondents paid the scrutiny charges on 11-4-2008 as disclosed in Receipt No. 73 issued by the High Court of that date. When the appeal papers were filed on 6-9-2007 and the scrutiny charges were paid on 11-4-2008, it was quite apparent that the processing of papers of the appeals for its registration did commence in the month of April 2008. Thereafter, if rectification of whatever defects were not carried out by the respondents or its counsel between April 2008 and May 2012, it is the bounden duty of the respondents to have satisfactorily explained such a long delay in refiling. When we refer to the applications filed on behalf of the appellant(s), we find that there was no convincing explanation as to how the respondents were disabled from rectifying the defects pointed out by the Registry and refilling the appeal papers within time. The respondents only attempted to throw the blame on the previous counsel to whom appeal papers were entrusted for filing in September 2007. As pointed out by the learned Senior Counsel for the appellant(s), there were no details as to whom it was entrusted and what were the steps taken to ensure that the appeals filed were duly registered for pursuing further remedy as against the said judgment of the trial court. As a matter of fact the appeal papers were filed without payment of any court fee. This only affirms the stand of the appellant(s) that there was no bona fide in the respondents’ claim and that they were seriously interested in challenging the judgment of the trial court as against the non-grant of relief of specific performance. We also fail to see as to how Respondent 1 which is a limited company involved in the business of exports, which would certainly have its own legal department, can plead that after entrusting the papers to some counsel whose name was not disclosed even before this Court did not even bother to take any follow-up action to ensure that its appeals were duly registered in the High Court. In this context the maxim vigilantibus non dormientibus jura subveniunt (law assists those who are vigilant and not those who sleep over their rights) aptly applies to the case on hand. In this context the maxim vigilantibus non dormientibus jura subveniunt (law assists those who are vigilant and not those who sleep over their rights) aptly applies to the case on hand. The respondents simply by throwing the blame on the previous counsel whose identity was not disclosed claimed that irrespective of the enormous delay of 1727 days in refiling the same should be condoned as a matter of course as there was only 9 days’ delay involved in filing the appeals. 24. When we apply those principles of Bhattacharjee case4 to the case on hand, it has to be stated that the failure of the respondents in not showing due diligence in filing of the appeals and the enormous time taken in the refilling can only be construed, in the absence of any valid explanation, as gross negligence and lacks in bona fides as displayed on the part of the respondents. Further, when the respondents have not come forward with proper details as regards the date when the papers were returned for refilling, the non-furnishing of satisfactory reasons for not refilling of papers in time and the failure to pay the court fee at the time of the filing of appeal papers on 6-9-2007, the reasons which prevented the respondents from not paying the court fee along with the appeal papers and the failure to furnish the details as to who was their counsel who was previously entrusted with the filing of the appeals cumulatively considered, disclose that there was total lack of bona fides in its approach. It also requires to be stated that in the case on hand, not refilling the appeal papers within the time prescribed and by allowing the delay to the extent of nearly 1727 days, definitely calls for a stringent scrutiny and cannot be accepted as having been explained without proper reasons. As has been laid down by this Court, courts are required to weigh the scale of balance of justice in respect of both the parties and the same principle cannot be given a goby under the guise of liberal approach even if it pertains to refilling. The filing of an application for condoning the delay of 1727 days in the matter of refilling without disclosing reasons, much less satisfactory reasons only results in the respondents not deserving any indulgence by the court in the matter of condonation of delay. The filing of an application for condoning the delay of 1727 days in the matter of refilling without disclosing reasons, much less satisfactory reasons only results in the respondents not deserving any indulgence by the court in the matter of condonation of delay. The respondents had filed the suit for specific performance and when the trial court found that the claim for specific performance based on the agreement was correct but exercised its discretion not to grant the relief for specific performance but grant only a payment of damages and the respondents were really keen to get the decree for specific performance by filing the appeals, they should have shown utmost diligence and come forward with justifiable reasons when an enormous delay of five years was involved in getting its appeals registered. (ii) 2006 (1) CTC 187 (A. Muthusamy vs Muniammal and others), wherein this Court held as follows: “ 13. Though the above observations are made in the proceedings under Section 5 of the Limitation Act, those principles are applicable while considering the delay in representation of the papers. The delay of 477 days appears to be due to deliberate in action on the part of the Revision Petitioner. 14. The learned counsel for the Revision Petitioner has submitted that by declining to condone the delay in representation of the appeal, the Revision Petitioner would be deprived of the opportunity from filing the appeal in the first Appellate Court. Contentions of the parties in the suit does not merit acceptance. In the partition suit, after all what is the contention of the Revision Petitioner/Appellant. The mother and sisters are entitled to 4/5th share. In fact, there was also talks of settlement which did not fructify. The defendant cannot have any valid defence against the lawful share of the mother and sister. Hence the contention that the Revision Petitioner would be deprived of valuable right has no merits. 9. Countering the submissions made by the learned counsel made by the learned counsel for the petitioners, Ms.P.T. Asha, learned counsel appearing for the respondent submitted that the lower Appellate Court has rightly condoned the delay for the reason that the respondent has satisfactorily explained the reasons in the affidavit, filed in support of the petition. Further, the learned counsel submitted that since the respondent was a minor, he represented the papers after attaining majority. Further, the learned counsel submitted that since the respondent was a minor, he represented the papers after attaining majority. The learned counsel, in support of her contention, relied upon the following judgment: (i) 1998 (7) SCC 123 (N. Balakrishnan vs M. Krishnamurthy), wherein the Apex Court has 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.” (ii) 2006(1) CTC 191 (S. Mohan vs Cruz Mary), wherein this Court has held that the length of delay is not material and acceptability of explanation is important. Further, this Court held that delay of long range can be condoned if the explanation is satisfactory and the Superior Court is free to consider the cause shown for the delay afresh and come to its own finding even untrammeled by the conclusion of the lower court. 10. On a careful consideration of the materials available on record and the submissions made by the learned counsel on either side and also the judgments relied upon by the learned counsel on either side, it could be seen that the suit in O.S.No.542 of 2003 was dismissed by the I Additional Subordinate Court, Erode on 29.07.2005. 10. On a careful consideration of the materials available on record and the submissions made by the learned counsel on either side and also the judgments relied upon by the learned counsel on either side, it could be seen that the suit in O.S.No.542 of 2003 was dismissed by the I Additional Subordinate Court, Erode on 29.07.2005. Aggrieved over the dismissal of the suit in O.S.No.542 of 2003, the respondent herein, represented by his mother, filed an appeal before the Principal District Court, Erode in the year 2006 and the papers were returned for rectifying certain defects on 12.6.2006. 11. According to the respondent/plaintiff, he was a minor and that his mother was prosecuting the matter. However, since his mother was ignorant, she was not in a position to obtain the respondent's birth certificate and that he was able to get birth certificate on 12.11.2014 and immediately he re-presented the papers before the lower Appellate Court. 12. On a perusal of the birth certificate, annexed to the typed set of papers, filed by the respondent, it could be seen that the respondent was born on 31.5.1988. Therefore, he attained majority on 31.5.2006. The suit was prosecuted by his mother before the trial court and the appeal was also preferred by his mother before the lower Appellate Court. But, when the papers were returned on 12.6.2006 by the lower Appellate Court for rectifying certain defects, the respondent took nearly 8 ½ years to re-present the papers stating that his birth certificate was not available. 13. When the suit was filed by the respondent's mother as his guardian and also the appeal was also filed by her as guardian, the necessity for getting the birth certificate at that point of time, to declare the respondent as major, cannot be believed. It is not the case of the respondent that his mother was not prosecuting the matter in a proper manner. 14. It is also not the case of the respondent that the papers were returned by the lower Appellate Court for producing his birth certificate. Even after getting the appeal numbered, the respondent could have filed an application to declare him as major and to discharge his guardian. Instead, he waited till his 26th years of age for re-presenting the papers. It is also not the case of the respondent that the papers were returned by the lower Appellate Court for producing his birth certificate. Even after getting the appeal numbered, the respondent could have filed an application to declare him as major and to discharge his guardian. Instead, he waited till his 26th years of age for re-presenting the papers. When the papers were returned by the Registry for rectifying certain defects, the respondent should have represented the papers at the earliest possible time. Even on the date of return, i.e., on 12.6.2006 itself, the respondent attained majority. That being the case, the reason given by the respondent that since he could not get the birth certificate, the papers were not re-presented for 3071 days, cannot be accepted. 15. In the judgment relied upon by the learned counsel for the petitioners reported in 2015 (1) SCC 680 (H. Dohil Constructions Company Private Limited vs Nahar Exports Limited and another), the Apex Court held that in the case of delay in refilling, the scale of balance of justice is required to be weighed in respect of both the parties. Where there is lack of bonafides and gross negligence on the part of the petitioners which consequentially will prejudice the cause of the respondents, stringent scrutiny of the petitioners' explanation is needed to determine sufficiency of cause of such delay. In that case, there was a delay of 1727 days in refilling the papers, and it was rejected by the Apex Court stating that the delay cannot be condoned as a matter of course. 16. The ratio laid down by the Hon'ble Supreme Court in 2015 (1) SCC 680 (H. Dohil Constructions Company Private Limited vs Nahar Exports Limited and another) squarely apply to the facts and circumstances of the present case. 17. Though there is no dispute with regard to the ratios laid down in the judgment relied upon by the learned counsel for the respondent, since the respondent has not properly explained the reasons for the delay, the said principles are not applicable to the facts and circumstances of the present case. 18. The inordinate delay of 3071 days in re-presenting the papers were condoned as a matter of course by the lower Appellate Court. The inaction on the part of the respondent would clearly establish that he was not prosecuting the matter in a diligent manner. 18. The inordinate delay of 3071 days in re-presenting the papers were condoned as a matter of course by the lower Appellate Court. The inaction on the part of the respondent would clearly establish that he was not prosecuting the matter in a diligent manner. In the absence of sufficient cause by the respondent, the delay cannot be condoned. If such a long delay of 3071 days is condoned, without sufficient cause, the petitioners/defendants would be put to hardship and prejudice even after so many years. 19. In these circumstances, I am of the view that the lower Appellate Court should not have condoned the inordinate delay of 3071 days in re-presenting the papers. Therefore, the fair decreetal order passed by the Principal District Judge, Erode in I.A.No.310 of 2014 in Unnumbered A.S on 25.03.2015 are set aside and the application in I.A.No.310 of 2014 stands dismissed. 20. With the above observation, the Civil Revision Petition is allowed. No costs. Consequently, connected MP is closed.