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2019 DIGILAW 1976 (MAD)

R. Sivakami v. Tamilselvi

2019-07-31

T.RAVINDRAN

body2019
JUDGMENT : 1. The Civil Miscellaneous Petition has been laid by the petitioner to condone the delay of 1352 days in representing the above appeal in S.A.Sr.No.52692 of 2009. 2. The first respondent has laid the partition suit against the petitioner and the second respondent in O.S.No.110 of 2004. The above said suit came to be dismissed on 16.02.2007. The first respondent preferred the first appeal in A.S.No.19 of 2007, challenging the dismissal of the suit before the Suborinate Court, Udumalpet. It is also noted that the petitioner has preferred cross appeal in the above said first appeal in Cross Appeal No.28 of 2008. The first appellate Court had allowed the first respondent's claim with regard to the plaint “B” schedule property and accordingly, disposed of the first appeal in favour of the first respondent and also dismissed the cross appeal preferred by the petitioner on 21.11.2008. Challenging the same, the second appeal has been preferred by the petitioner. 3. According to the petitioner, she had entrusted all her documents to her son Manoharan, the second respondent and further, it is stated that it is she, who has been in the possession and enjoyment of the suit properties and that the patta and the revenue records in respect of the suit properties have been in the name of her husband and the petitioner is an old lady and depending upon her son and daughter and it is put forth that the respondents had intended to grab the entire share in the plaint “B” schedule property and accordingly, she was urging the first appellate Court to permit her to file the written statement and receive the original Will executed by her husband and remand the matter to the trial Court for fresh trial. However, the first appellate Court had erroneously dismissed the cross appeal and now, according to the petitioner, the second appeal papers preferred by her had been returned to comply with the defects on 08.07.2009 and that her counsel had asked for the relevant papers including the copy of the plaint, written statement and the evidence of the witnesses and as the petitioner had been suffering from ailments due to her old age, she could not meet her counsel in the first appellate Court and therefore, unable to take immediate steps to send the required papers to her counsel to pursue the appeal and thereafter, after mobilizing the funds for expenses and advocate fees, she was able to meet her counsel only in the third week of March, 2014 and collect the deposition of the witnesses and other case papers to send the same to her counsel at Chennai with the amount for expenses and thereafter, her counsel had taken steps to represent the appeal papers, however, there occurred the delay of 1352 days in representing the same and hence, to condone the said delay, the present petition has been laid by her. 4. Both the respondents contested the delay petition preferred by the petitioner and the second respondent has filed a counter and disputed the alleged reasons projected by the petitioner for the delay and according to the second respondent, the suit in O.S.No.133 of 2002 has been levied by the petitioner for injunction without the petitioner being in the possession and enjoyment of the plaint “B” schedule property and in the maintenance petition, the petitioner had admitted that the second respondent alone has been in the possession and enjoyment of the entire properties. The suit for partition has been levied by the first respondent in O.S.No.110 of 2004 and the above said suit was dismissed and the first appeal preferred by the first respondent was allowed partly and the cross appeal preferred by the petitioner has been dismissed and despite the receipt of the summons in the trial Court, the petitioner did not appear and file the written statement and contest the matter and accordingly, she had been set exparte by the trial Court and pursuant to the judgment and decree of the first appellate Court, the properties had been allotted to the first respondent towards her share and by the sale deed dated 05.08.2013, she had executed and transferred her right of irrigation from the Well in the property to the second respondent and also executed a settlement deed dated 21.04.2015 in respect of the property allotted in the plaint “B” schedule property to her daughters and the daughters have also sold the properties to the third party by a sale deed dated 22.04.2015 and the revenue records had since been transferred in the name of the second respondent and the third party and only with an ulterior motive, the present petition has been preferred by the petitioner. The case projected by the petitioner that she has been suffering from the ailments due to her old age and thereby, unable to meet her counsel and file the required papers called for by her counsel are all false and the petitioner had been regularly attending each and every hearings in the maintainance case in M.C.No.41 of 2008 on the file of the Judicial Magistrate Court, Udumalpet and till the disposal of the said case, she had been attending all the proceedings and pursuant to the order of maintenance, the petitioner is also remitting the maintenance amount paid by the second respondent in her bank account and withdrawing the same, every month directly and therefore, the alleged reasons projected for the huge and inordinate delay of 1352 days in representing the appeal papers are totally false and only with a view to defeat the interest of the second respondent, the petitioner in collusion with the first respondent had come forward with the present petition and therefore, the petition is liable to be dismissed. 5. 5. The partition suit levied by the first respondent against the petitioner and the second respondent had been allowed by the first appellate Court in favour of the first respondent. Impugning the same, the petitioner has preferred the second appeal. It is found that the second appeal papers preferred by the petitioner had been returned for compliance, the petitioner had not represented the papers in time and there occurred the delay of 1352 days in representing the papers and to condone the said delay, the present petition has been preferred. 6. The reasons projected by the petitioner for the delay are that she was suffering from aliments due to her old age and on account of the same, she was unable to meet her counsel in the lower appellate Court and obtain the papers sought for by her counsel at Chennai and only after recovery, she was able to contact her counsel and secure the papers and send them to the counsel at Chennai and thereby, the delay had occurred. The above said reasons projected by the petitioner are totally disputed by the respondents. Still the petitioner has not come forward clearly as to when she had been laid down with the ailments, what is the nature of the treatment taken by her, with whom she had been taking treatment, when she had recovered and with reference to the above said particulars, the petitioner has not come forward with the details and very vaguely, she has stated that due to old age, she had been suffering from ailments and unable to meet her counsel thereby. On the other hand, considering the case projected by the respondents, it is found that the petitioner had been prosecuting the maintenance case projected by her in M.C.No.41 of 2008 on the file of the Judicial Magistrate Court, Udumalpet and conducting the same till its disposal on 04.08.2010 and furthermore, she had been remitting the maintenance amount paid by the second respondent to her bank account and withdrawing the said amount directly every month and therefore, when it is seen that the petitioner had been fit and healthy to conduct the maintenance case levied by her to say that she was laid down with ailments on account of her old age and thereby, unable to meet her counsel in the lower appellate Court for securing the papers required for the second appeal, as such, cannot be readily accepted. Therefore, the above said reasons projected by the petitioner for the huge and inordinate delay, which had occurred in the matter, not having been substantiated by the petitioner, at least, with prima facie materials, the same do not merit acceptance. 7. Therefore, the above said reasons projected by the petitioner for the huge and inordinate delay, which had occurred in the matter, not having been substantiated by the petitioner, at least, with prima facie materials, the same do not merit acceptance. 7. That apart, it is found that pursuant to the decree passed in favour of the first respondent, she had chosen to alienate/transfer her right / interest in favour of the second respondent as well as to her daughter during 2013 & 2015 and thereby, the daughters had also alienated their interest to the third party and when the same are not controverted by the petitioner and accordingly, when much water is found to have flown down across the bridge, after the decree had been passed in favour of the first respondent and the petitioner has not contended that she is unaware of the above said developments and as contended by the respondent, the petitioner, despite the summons, having also not shown interest to contest the suit levied by the first respondent before the trial Court, in such view of the matter, it is seen that only with a view to deprive the first respondent as well as the second respondent in enjoying their share of the suit properties as acquired by them, the present petition has been laid without any basis and considering the relationship between the parties, in all, in such view of the matter, considering the cause alleged by the petitioner for the huge and inordinate delay in representing the papers and proceed with the second appeal properly, her deliberate inaction would only go to show that the petitioner is not at all interested in the prosecution of the matter as per law and accordingly, as rightly put forth by the respondent, if the petition is allowed, irreparable loss and hardship would be caused to the respondents and in such view of the matter, I am not inclined to accept the reasons put forth by the petitioner for the condonation of the inordinate delay. The conduct of the petitioner from the inception would go to show that she is not serious in the prosecution of the matter and accordingly, no indulgence could be extended in favour of the petitioner, particularly, she having not adduced any sufficient cause for the delay and also not substantiated the same even with prima facie materials. The conduct of the petitioner from the inception would go to show that she is not serious in the prosecution of the matter and accordingly, no indulgence could be extended in favour of the petitioner, particularly, she having not adduced any sufficient cause for the delay and also not substantiated the same even with prima facie materials. For the reasons aforestated, the petition is dismissed. Consequently, connected S.A.Sr.No.52692 of 2009 is rejected.