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2020 DIGILAW 291 (MAD)

E. Rajakumari v. R. Sampath

2020-02-11

S.M.SUBRAMANIAM

body2020
JUDGMENT : S.M. SUBRAMANIAM. J. Prayer: Petition under Order 41 rule 3(A) of the Code of Civil Procedure, 1908, to condone the delay of 66 days in filing the first appeal before this Court. 1. The Miscellaneous petition is filed to condone the delay of 66 days in filing an Appeal Suit against the judgment and decree dated 30.07.2018 passed in O.S.No.48 of 2012. 2. The learned counsel appearing on behalf of the petitioner mainly contended that the Original Suit was dismissed on 30.07.2018 and on 22.10.2018, the petitioner had submitted an application for certified copy of the judgment and decree and he received the same on 23.10.2018. It is stated that the certified copy of the decree in EA.No.51 of 2012 was misplaced and thereafter the petitioner had taken steps to trace out the decree but could not get the same. Thus, the petitioner filed a fresh application for certified copy on 22.04.2019 and the said certified copy was received on 24.04.2019. Thus, there is a delay of 66 days in filing the appeal suit against the judgment and decree and the delay is neither wilful nor wanted and therefore, the delay is to be condoned. 3. The learned counsel appearing on behalf of the petitioner reiterated that the judgment and decree was passed in the original suit on 30.07.2018 and the appeal suit was filed on 03.01.2019. On the date of filing of the appeal suit, the limitation got arrested and subsequently, the missed copy of the decree was filed along with the suit and thereafter, the miscellaneous petition to condone the delay is filed. Thus, the reasons stated in the affidavit are genuine and therefore, the delay is to be condoned. Further it is submitted that, with reference to the same common judgment and decree dated 30.07.2018, another appeal suit in AS.No.44 of 2019 was filed and the said appeal suit is pending. Under these circumstances, in the event of not condoning the delay of 66 days, the petitioner would be greatly prejudiced. 4. The learned counsel appearing on behalf of the 4th respondent strenuously opposed the delay petition on the ground that the reasons stated for condoning the delay of 66 days are neither candid nor convincing. The condonation of delay being an exception cannot be exercised in the absence of any genuine reason. 4. The learned counsel appearing on behalf of the 4th respondent strenuously opposed the delay petition on the ground that the reasons stated for condoning the delay of 66 days are neither candid nor convincing. The condonation of delay being an exception cannot be exercised in the absence of any genuine reason. The parties who are approaching Appellate Court must not only be vigilant but the appeals are to be filed within a period of limitation as the law of limitation is substantive. 5. The learned counsel appearing on behalf of the 4th respondent reiterated that the condone delay filed by some tricky clients cannot be entertained by the Courts as certain fraudulent activities are involved in these litigations which all are to be considered by the Court. The learned counsel for the 4th respondent further solicited the attention of this Court regarding Order XLI Rule 3A of the Code of Civil Procedure, wherein it is enumerated " When an appeal is presented after the expiry of the period of limitation specified therefore, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period". Therefore sufficient cause is a mandatory requirement under Order XLI Rule 3A and in the present case, the manner in which the reasons has been stated is insufficient and cannot be construed as sufficient cause. Thus the petition is liable to be dismissed. 6. It is further stated that perusal of the affidavit reveals that, who lost the decree copy, when it was lost, the details regarding the submission of application, no such details are available in the affidavit and in the absence of any such details, the Court could not condone the delay of 66 days and filing the appeal suit. 7. In para 10 of the affidavit filed in support of the miscellaneous petition, the petitioner had stated that the certified copy of the decree in EA No.51 of 2012 was misplaced. However, the appeal suit is filed against the judgment and decree passed in O.S.No.48 of 2012 and therefore, the reason stated in the affidavit is irrelevant and missing the decree in EA.No.51 of 2012 is no way connected with the judgment and decree in O.S.No.48 of 2012. However, the appeal suit is filed against the judgment and decree passed in O.S.No.48 of 2012 and therefore, the reason stated in the affidavit is irrelevant and missing the decree in EA.No.51 of 2012 is no way connected with the judgment and decree in O.S.No.48 of 2012. Thus, the reasons are insufficient and cannot be construed as "sufficient cause", as contemplated under Order XLI Rule 3A of C.P.C. 8. In support of the said contention, the learned counsel for the 4th respondent cited the order of the Bombay High Court in the case of Smt.Suggarbee Kachharuddin Kordu Vs. Jantababee Kasim Dange & Ors., reported in 2002 AIHC 3809, wherein the following observations are made:- "...The law does not help the indolents. The broader approach should be made available to those litigants who are suffering on account of grounds which are beyond their control. But persons who are assisted by the lawyers, engaged in legal battles, who keep sleeping for considerable days without following proper remedies for venting out their grievances are to be treated in different ways. The litigants who fight legal battles, use all available remedies for venting out their grievances but do not file appropriate proceedings at proper time without any justifiable ground, should be exposed to the natural consequences of their tricky behaviour. Such tricky persons cannot be permitted to reserve the last remedy for getting solace after getting defeated in self-brought battles of legal litigations. The longer period of delay sought to be condoned is also to be considered appropriately in context with their oblique intentions. When the litigant is stretching the legal battles to maximum and thereafter making the prayer for condonation of delay of a longer period has to be dealt with properly, because such litigants create the crowd of litigations and block the ways of needy litigants in getting due relief from the courts. Such litigants and their tricks are the obstacles in continuous flow of administration of justice." 9. In the case of Arjit Singh Thakur Singh & another Vs. State of Gujarat, reported in AIR 1981 SC 733 , the Apex Court rules as follows:- "...Now, it is true that a party is entitled to wait until the last day of limitation for filing an appeal. In the case of Arjit Singh Thakur Singh & another Vs. State of Gujarat, reported in AIR 1981 SC 733 , the Apex Court rules as follows:- "...Now, it is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute such sufficient cause. There may be events or circumstances subsequent to the expiry of limitation which may further delay the filing of the appeal. But that the limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation. In the present case, there was no such cause, and the High Court erred in condoning the delay." 10. The Madras High Court in the case of Managing Director, Thanthai Periyar Transport Corporation, Villupuram Vs. K.C.Karthiyayini, reported in AIR 1995 MADRAS 102, held as follows:- "Counsel for one of the petitioners also contends that O. 41 R. 3-A(1) gives a further right to claim condonation of the delay, in addition to such right under S. 5 of the Limitation Act and that O. 41, R. 3-A(3) will have application only if the said S. 5 is invoked. According to him these petitions to condone delay are filed under S. 173 of the Motor Vehicles Act and not under S. 5 of the Limitation Act. In this connection, he relied on Nirmala Chaudhary v. Bisheshar Lal (AIR 1979 Delhi 26) and State of Assam v. Gobinda Chandra Paul (AIR 1991 Gauhati 104.) The observation in A.I.R. 1979 Delhi 26 is no doubt as follows: “The newly added provision of R. 3A of O. 41 in the Civil P.C. gives an additional right to a litigant to claim condonation at the time of presenting the appeal.” In State of Assam v. Gobinda Chandra Paul (AIR 1991 Gauhati 104) also similar view appears to have been expressed in the following words:— “Besides, this rule is not in derogation of S. 5 of the Limitation Act. In fact, it is in addition to that.” But, we are unable to subscribe to this view, since O. 41 R. 3-A, C.P.C. has only been inserted by the Amending Act, 1976 in order to prescribe the procedure for securing the final determination of the question as to limitation even at the stage of admission of the appeal. The Rule does not prescribe the period of limitation for an appeal. The period of limitation is provided only under Article 116 of the Limitation Act, 1963 in respect of appeals and it cannot be said that O. 41, R. 3-A gives any additional right to litigants to claim condonation. Moreover, condonation of delay is not a matter of right. The litigant who comes to court after the prescribed period of limitation is bound to satisfy the court that he has sufficient cause for the delay. 11. The Karnataka High Court in the case of Rukumiddin & another Vs. Rajashekhara, reported in 1999 AIHC 502, made an observation that, "the appellate Court further took note of the fact that no specific reason has been given why the 2nd petitioner or his heir did not take steps for filing the appeal. It has further mentioned that the affidavit does not disclose when the 1st petitioner had fallen ill and when he recovered and from what date to what date he was an inpatient. The lower Appellate Court has further taken note of that nothing has been stated about the doctor from whom petitioner had taken the treatment. Looking to the overall picture, the lower Appellate Court held that the appellant before it i.e. the revisionist failed to make out a case of satisfactory explanation for not filing the appeal in time." 12. In the case of State of Rajasthan Vs. Madan Gopal and other, reported in AIR 1999 RAJASTHAN 248, the High Court of Rajasthan also held that no sufficient cause shown to condone the delay and therefore the delay cannot be condoned. 13. Relying on the judgments cited supra, the learned counsel for the 4th respondent emphasised that the delay, though seems to be smaller cannot be condoned, in view of the fact that the reasons are not convincing and further "sufficient cause" as contemplated under Order XLI Rule 3A of C.P.C. has not been satisfied and therefore, the petition is to be dismissed. 14. 14. In reply, the learned counsel appearing on behalf of the petitioner has submitted the judgment of the Hon'ble Supreme Court of India, in the case of Bir Bajrang Kumar Vs. State of Bihar, reported in AIR 1987 SC 1345 , wherein the Apex Court made the following observations:- "Special leave is granted. Heard the counsel for the parties. After going through the record of the case it appears that one of the cases involving an identical point has already been admitted by the High Court but another identical petition was dismissed by the same High Court. This, therefore, creates a very anomalous position and there is a clear possibility of two contradictory judgments being rendered in the same case by the High Court. In these circumstances, we allow this appeal and set aside the order dismissing CWJC No. 183 of 1985. This appeal is remanded to the High Court to be heard along with CWJC No. 5728 of 1984 which is pending hearing. Status quo as on today in both the cases shall be maintained. The respondents are at liberty to move the High Court for any other relief, if so advised." 15. Relying on the said judgment, the learned counsel appearing on behalf of the appellant said that already against the common judgment passed on 30.07.2018, another appeal suit was filed by the other party in AS.No.44 of 2019 and therefore, the delay is to be condoned and the appeal suits are to be heard together in order to avoid prejudice to either of the parties. In the event of not allowing the petition, great prejudice would be caused to the petitioner and the benefit of effective adjudication would be denied to the petitioner. Thus the delay is to be condoned. 16. Considering the arguments advanced, this Court is of the considered opinion that, law of limitation is the substantive. Courts cannot condone the delay in the routine manner. Undoubtedly, the spirit of Order XLI Rule 3A of CPC is to be considered before exercising the discretionary power of condonation of delay. Rule is to file appeal within the limitation period. Condonation of delay is an exception. Courts are vested with discretionary power. Discretionary power cannot be exercised in a callous manner. Power of discretion is to be exercised judicously and by recording reasons. Rule is to file appeal within the limitation period. Condonation of delay is an exception. Courts are vested with discretionary power. Discretionary power cannot be exercised in a callous manner. Power of discretion is to be exercised judicously and by recording reasons. Such reasons recorded by the Courts are supposed to be candid and on sound legal principles. Courts cannot close its eyes regarding the genuinity or otherwise of the pleadings set out to condone the delay and the delay cannot be condoned in a routine manner. It is not as if the Courts can have a routine approach in the matter of condonation of delay by exercising the discretionary power. But the discretionary power is to be exercised by recording reasons which must be reasonable and legally acceptable. 17. This apart the delay if it is enormous or meagre is also to be considered by the Courts. Some times, it may not be convenient or there may be some delay on account of various reasons in filing appeals. In those circumstances, if the Courts are able to form an opinion that the delay is meagre and in the event of not condoning the delay, prejudice would be caused to either of the parties, then the discretionary power of condonation of delay can be exercised. 18. It is not as if Court can adopt a liberal approach in condonation of delay. Equally hard approach is also to be averted. Thus, a balancing approach is to be adopted for the purpose of condoning the delay in filing the appeal suits. 19. In the lis on hand, the parties have contested the condone delay petition mainly on the ground that the reasons are insufficient. contrarily, the petitioner has stated that the reasons are genuine in view of the fact that the petitioner was consistently pursuing the matter and contested the suit with full force. Therefore, in the event of not condoning the delay, great prejudice would be caused. Further, it is contended that another appeal suit in AS.No.44 of 2019 is pending with reference to the same judgment and for effective adjudication, the delay of 66 days is to be condoned and the appeal suits are to be heard together in order to avoid hardship to the petitioner. 20. Further, it is contended that another appeal suit in AS.No.44 of 2019 is pending with reference to the same judgment and for effective adjudication, the delay of 66 days is to be condoned and the appeal suits are to be heard together in order to avoid hardship to the petitioner. 20. It is further stated that the reason stated in para 10 of the affidavit regarding the misplacement of the decree passed in EA No.51 of 2012, it is a common judgment wherein, the Trial Court has passed with reference to O.S.No.48 of 2012 and EA No.51 of 2012 in EP No.45 of 2012 and against the common judgment, the appeals are filed. In view of the fact that it is a common judgment, the petitioner has stated that the decree in EA No.51 of 2012 was misplaced and because of that the condone delay petition need not be dismissed and the reasons stated regarding the misplacement of decree is genuine and under those circumstances, the petition is to be allowed. 21. As far as the reasons are concerned, undoubtedly it is stated that the judgment and decree was received by the petitioner on 23.10.2018, however he misplaced the copy of the decree and thereafter, had taken steps to trace out the same and he could not succeed and thereafter he filed a fresh application on 22.04.2019, which was received on 24.04.2019 and pursued the appeal suit and therefore, there is a delay of 66 days in filing the appeal. 22. Though minute details regarding the misplacement is absent, this Court is of the considered opinion that the delay cannot be said to be enormous. In a case where there is an enormous delay, then the Courts are to be cautious in exercising the discretionary power of condonation of delay. If the delay is meagre, then a liberal approach can be adopted so as to avoid any deprivement of effective adjudication with reference to the rights of the parties to the lis. 23. This apart, smaller delay would not cause prejudice to either of the parties and taking note of these facts, the Courts can adopt a liberal approach in respect of meagre delay in filing appeal. Even then the Courts must found that reasons which all are stated must be acceptable. 23. This apart, smaller delay would not cause prejudice to either of the parties and taking note of these facts, the Courts can adopt a liberal approach in respect of meagre delay in filing appeal. Even then the Courts must found that reasons which all are stated must be acceptable. In the present case, the reason stated is that the decree copy was misplaced and the petitioner had taken steps to trace out and failed and therefore applied for a fresh certified copy and immediately, the appeal suit is filed. 24. The reasons stated on one side and the delay of 66 days on other side weighing the balance, this court is able to arrive a conclusion that the delay deserves to be condoned. Accordingly, the delay of 66 days stands condoned. Condone Delay petition is allowed. Registry is directed to number the appeal suit and tag the appeal suit along with AS.No.44 of 2019 and post the matter for further hearing after one week.