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2019 DIGILAW 1977 (MAD)

Abranji Naidu (Died) v. Dhanus Naidu

2019-07-31

T.RAVINDRAN

body2019
JUDGMENT : 1. The petition has been laid to condone the delay of 844 days in preferring the second appeal. 2. According to the petitioners, the suit in O.S.No.427 of 1994 has been laid against the respondents for the relief’s of declaration and permanent injunction. It has also been stated that the respondents had filed a suit in O.S.No.428 of 1994 for the relief’s of declaration and permanent injunction in respect of the same subject matter. It is found that the above said suits were renumbered as O.S.Nos.33 of 1999 and 34 of 1999 respectively, after the cases had been transferred to the file of the District Munsif Court, Pennagaram and the trial court on an appreciation of the materials placed on record and the submissions made, was pleased to dismiss the suit laid by the petitioners and decree the suit laid by the respondents by way of a common judgment dated 12.03.2010. Aggrieved over the same, it is found that the petitioners had preferred A.S.Nos.6 and 7 of 2010 respectively on the file of the Subordinate Court, Dharmapuri. The first appellate court had dismissed the above said appeals on 31.08.2012. Aggrieved over the same, it is found that the petitioners have come forward with the present second appeal, however as there occurred the delay of 844 days in preferring the second appeal, to condone the same, the present petition has been preferred. 3. The first appellate court had dismissed the above said appeals on 31.08.2012. Aggrieved over the same, it is found that the petitioners have come forward with the present second appeal, however as there occurred the delay of 844 days in preferring the second appeal, to condone the same, the present petition has been preferred. 3. According to the petitioners, with reference to the delay, they would submit that their counsel in the first appellate court had not informed them about the dismissal of the appeals and he had given the assurance that he would inform the stage of the matter as and when the matter is listed for final hearing and the petitioners' paternal uncle Nagaraj was following the case proceedings in the first appellate court and as he was suffering from acute Arthritis joint pain and immobilized and taking native treatment and unable to move, he was not able to meet the counsel and therefore the petitioners were under the bonafide impression that the first appeals are still pending and only in the first week of December 2013 when they met their counsel at the office, they came to know about the dismissal of the first appeals and their counsel had informed that he had sent letter apprising of the dismissal of the appeals, however the petitioners had not received the said letter and thereby they had been advised to prefer the second appeals immediately and they had forwarded the papers to the counsel at Chennai for preferring the second appeal and subsequently, after a few months, when they had contacted their counsel at Chennai to know the status of their case, their counsel had informed them that the second appeal has not been filed as the concerned papers had been misplaced due to the shifting of the counsel's office from Alwarpet to Mandaveli and only during the second week of April 2015 they were informed by the counsel that the concerned bundles had been kept mixed up with other case bundles and only thereafter they were able to prefer the appeal, hence the delay had occurred. Therefore, they filed this petition for the condonation of delay. 4. Therefore, they filed this petition for the condonation of delay. 4. The above said case projected by the petitioner for the delay had been stoutly repudiated by the respondents contending that it is false to state that the petitioners are not aware of the dismissal of the appeals on 31.08.2012 and on the other hand, they had applied for the certified copies of the judgment and decree on 03.09.2002 and received the copies on 11.10.2012 and therefore the petitioners cannot be allowed to put the blame on the lower court counsel for not preferring the second appeal in time. The petitioners have not come forward as to when their father had died and also about the particulars of the illness said to have been suffered by the paternal uncle and the native treatment taken by him and further the case put forth by the petitioners that the bundles had been kept misplaced due to the shifting of the office of the Chennai counsel from Alwarpet to Mandhaveli is also false and the petitioners had not adduced sufficient cause and the alleged cause projected by them is utterly false and unacceptable and only with a view to cause undue hardship and loss to the respondents, the petitioners have come forward with the second appeals belatedly and therefore, there is no bonafides in the petition and the petition is liable to be dismissed. 5. The first cause adduced by the petitioner for the delay is that their counsel of the lower appellate court has not informed them about the dismissal of the first appeals and only subsequently when they approached the counsel in the first week of December 2013, they had come to know about the dismissal of the first appeals. However, the above said cause alleged by the petitioners has been repudiated by the respondents as a false one. From the available materials on record, it is found that the petitioners have filed the copy application on 03.09.2012 itself and received the same on 11.10.2012, therefore to say that they had no knowledge about the dismissal of the first appeal on 31.08.2012 cannot at all be accepted. From the available materials on record, it is found that the petitioners have filed the copy application on 03.09.2012 itself and received the same on 11.10.2012, therefore to say that they had no knowledge about the dismissal of the first appeal on 31.08.2012 cannot at all be accepted. However, to obviate the above said position, it is put forth by the petitioners that their conusel have informed them about the dismissal of the first appeals by way of a letter, however, according to them they had not received said letter and on the face of it, the above said reason is found to be totally unacceptable. When, without the instructions of the petitioners, it is seen that their counsel would not have applied for the certified copies of the judgment and decree of the first appellate court and when it is seen that the copy application with reference to the same had been filed on 03.09.2012 itself and copies had been received on 11.10.2012 and when the petitioners themselves had admitted that the counsel had reported to them qua the dismissal of the first appeals by way of a letter, but would only plead that the said letter had not been received by them and when it is not the case of the petitioners that they had shifted their residence since the disposal of the first appeals, it is patent and clear that the above cause put forth by the petitioners for the delay is totally incorrect, false and untenable. Further, according to the petitioners, their uncle Nagaraj was looking after the matter after the death of their father and as he was suffering from acute Arthritis joint pain and immobilized and taking native treatment, he was unable to contact the counsel and not know the stage of the case. Further, according to the petitioners, their uncle Nagaraj was looking after the matter after the death of their father and as he was suffering from acute Arthritis joint pain and immobilized and taking native treatment, he was unable to contact the counsel and not know the stage of the case. The above said cause has also not been accepted by the defendants and challenged by them, despite the same, there is no material whatsoever has been placed prima facie to hold that Nagaraj was suffering from acute Arthritis and joint pain and thereby became immobilised and taking native treatment and when with reference to the same, the particulars put forth by the petitioners are found to be totally vague and unclear and when the with reference to the said cause also, no prima facie materials has been projected by the petitioners, the said cause also cannot be accepted for the condonation of delay. 6. It is further put forth by the petitioners that they had directed the counsel at Chennai to prefer the second appeal, according to them, the concerned bundles kept misplaced during the shifting of their Chennai counsel office from Alwarpet to Mandavelli and the concerned bundles could be traced only in the second week of April 2015 and hence the delay. The above said cause is also strongly challenged by the defendants and when there is no proof on the part of the defendants with reference to the said cause and also when the said cause is also found to be bereft of particulars and not clear, in such view of the matter, the same cannot be accepted straightaway for the condonation of the huge and inordinate delay. 7. 7. In the light of the above position, when the petitioners are found to be aware of the dismissal of the first appeals in the first week of September 2012, when they have not endeavoured to prefer the second appeals subsequent thereto and the alleged cause projected by them are found to be totally unacceptable and not buttressed by any material whatsoever even prima facie, in such view of the matter, it is seen that only with a view to cause irreparable loss and hardship to the respondents, the petitioners have come forward with a false cause by throwing the blame on their counsel one way or the other and in such view of the matter, there is complete lack of bonafides in the case projected by the petitioners and therefore the same deserves no acceptance. 8. In the light of the above said factors, the petition is found to be devoid of merits and the same is dismissed with costs. Consequently S.A.S.R.No.37654 of 2015 is rejected.