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2025 DIGILAW 720 (MAD)

K. Pannerselvam v. Kuppathai (Died)

2025-01-31

K.MURALI SHANKAR

body2025
ORDER : K.Murali Shankar, J. The Civil Miscellaneous Petition has been filed seeking orders to condone the delay of 1266 days in preferring the appeal, challenging the judgment and decree made in O.S.No.60 of 2016 dated 14.03.2018 on the file of the Principal District Court, Karur. 2. ORDER : K.Murali Shankar, J. The Civil Miscellaneous Petition has been filed seeking orders to condone the delay of 1266 days in preferring the appeal, challenging the judgment and decree made in O.S.No.60 of 2016 dated 14.03.2018 on the file of the Principal District Court, Karur. 2. The case of the petitioner is that the petitioner filed a suit for specific performance, that after trial, the suit was dismissed on 14.03.2018, that the petitioner instructed his trial Court Advocate Clerk to take two sets of certified copies of the judgment and decree and accordingly, he applied for two sets in C.A.Nos.1579 and 1580 of 2018 on 16.03.2018, that the copies were made ready in C.A.No.1580 of 2018 on 28.08.2018 and delivered on 28.08.2018, that another copy application in C.A.No.1579 of 2018 was made ready on 29.08.2018 and delivered on 30.08.2018, that the petitioner has also applied for printed copies of the judgment and decree in C.A.No.1578 of 2018, that the petitioner due to his ill-health was not able to prefer an appeal immediately, that the petitioner contacted the respondents/defendants for amicable settlement and even expressed his willingness to pay more sale consideration but all his efforts went in vain, that the petitioner filed an appeal with certified copies of the judgment and decree obtained in C.A.No.1580 of 2018 before this Court during Covid-19 pandemic period on 10.11.2020 through physical filing (dropping in the box), that filing slip with the seal of this Court was given to his Advocate on record, that the said appeal filed in A.S.(MD)SR.No. 44226 of 2020 along with delay condonation petition were returned by the Registry for compliance of minor ministerial mistakes, that the petitioner's Advocate Clerk had taken back the returned bundles and misplaced the same during Covid-19 pandemic period, that the petitioner came to know this fact only when he approached his Advocate in November-2022 and their efforts to trace out the returned bundles ended in failure, that the petitioner having left with no other option has presented the present appeal suit with certified copies obtained in C.A.No.1579 of 2018 and as such, there occurred delay of 1266 days from 14.03.2018 till the filing of the above petition, that the delay occurred is neither willful nor wanton, that the petitioner apart from payment of Rs.36,000/- towards Court fee in A.S. (MD)SR.No.44226 of 2020, has again paid Court fee of Rs.36,000/- in the present appeal and that therefore, the delay occurred in filing the appeal may be condoned, otherwise, the petitioner will be put to irreparable loss and immense hardship. 3. The second respondent has filed a counter statement raising objections, whereunder, it has been stated that despite receiving the copies of the judgment as earlier as on 29.08.2018, the petitioner did not file an appeal till 10.11.2020, that the petitioner has failed to provide any explanation regarding his illness or the treatment undertaken, that the petitioner even after filing the appeal demonstrated the negligence in not re-presenting the appeal papers, that the delay has not been adequately explained by the petitioner and that therefore, the petitioner is not entitled to get the delay condoned. 4. The second respondent in her counter statement has further stated that the petitioner cannot succeed even on appeal before this Court because the delay itself indicates his lack of readiness and willingness, which is a mandatory requirement under Section 16 (c) of the Specific Relief Act , that the suit sale agreement dated 26.08.2013 specifies a sale consideration of Rs.12 lakhs, with an advance payment of Rs.11.50 lakhs and Rs.50,000/- is shown as balance due, that the performance period is fixed as two years without any justified reasons, that mere examination of the above dates clearly indicates that the suit sale agreement is a fabricated document, that the trial Court has rightly concluded that the petitioner is not entitled to the relief of specific performance as he has failed to prove the authenticity of the sale agreement, that there is absolutely no settlement talks between the parties, that the delay is huge one and the petitioner cannot file appeal as and when he wishes and that the above petition is liable to be dismissed. 5. It is not in dispute that the petitioner has filed a suit for specific performance of the agreement dated 26.08.2013 and after full-trial, the suit came to be dismissed vide judgment and decree dated 14.03.2018. According to the petitioner, he filed the appeal during Covid-19 period but the same came to be returned for rectification of some defects, that the returned bundles got misplaced in his Advocate Clerk office and they were unable to trace out the same and that therefore, the petitioner with no other option was forced to present the present appeal along with an application to condone the delay in preferring the appeal. 6. 6. No doubt, the petitioner has canvassed his ill-health as a ground for not filing the appeal till 2020 and the returned case records got mixed up with other records in his Advocate Clerk office and his inability to trace out the same as a reason for the Covid period and thereafter. 7. The learned counsel appearing for the respondents would rely on the recent judgment of the Hon'ble Supreme Court in the case of State of Madhya Pradesh Vs. Ramkumar Choudhary passed in Special Leave Petition (C) Diary No.48636 of 2024 dated 29.11.2024, wherein, the Hon'ble Apex Court has observed, “7. There is one another aspect of the matter which we must not ignore or overlook. Over a period of time, we have noticed that whenever there is a plea for condonation of delay be it at the instance of a private litigant or State the delay is sought to be explained right from the time, the limitation starts and if there is a delay of say 2 years or 3 years or 4 years till the end of the same. For example if the period of limitation is 90 days then the party seeking condonation has to explain why it was unable to institute the proceedings within that period of limitation. What events occurred after the 91st day till the last is of no consequence. The court is required to consider what came in the way of the party that it was unable to file it between the 1st day and the 90th day. It is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows the 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 the limitation expired it was not possible to Page 9 of 11 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. 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. (See: Ajit Singh Thakur Singh and Another v. State of Gujarat, AIR 1981 SC 733 ).” 8. In order to counter the said argument, the learned counsel appearing for the petitioner has relied on the decision of the Hon'ble Supreme Court in the case of State of Haryana Vs. Chandra Mani and others reported in (1996) 3 SCC 132 , wherein, the Hon'ble Apex Court has held that the expression “sufficient cause” should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. 9. In Ram Nath Sao Alias Ram Nath Sahu and others Vs. Gobardhan Sao and others reported in (2002) 3 SCC 195 , the Hon'ble Apex Court has observed, “12. Thus it becomes plain that the expression "sufficient cause" within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependant upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bona fide can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However, by taking a pedantic and hyper technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way.” 10. In Concord of India Insurance Co. Ltd. Vs. Nirmala Devi reported in (1979) 4 SCC 365 referred in State (NCT of Delhi) Vs. Ahmed Jaan reported in (2008) 14 SCC 582 , relied on by the learned counsel appearing for the petitioner, it has been held that in a case of negligence of the counsel which misled a litigant into delayed pursuit of his remedy, the default in delay was ordered to be condoned. 11. In Lala Mata Din Vs. A.Narayanan reported in (1969) 2 SCC 770, the Hon'ble Supreme Court had held that there is no general proposition that mistake of counsel by itself is always sufficient cause for condonation of delay and it is always a question whether the mistake was bona fide or was merely a device to cover up an ulterior purpose and in that case, it was held that the mistake committed by the counsel was bona fide and it was not tainted by any mala fide. 12. A Three Bench Judge of the Hon'ble Supreme Court in O.P.Kathpalia Vs. Lakshmir Singh reported in (1984) 4 SCC 66 , had held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay. 13. The Hon'ble Supreme Court in Collector, Land Acquisition, Anantnag Vs. 12. A Three Bench Judge of the Hon'ble Supreme Court in O.P.Kathpalia Vs. Lakshmir Singh reported in (1984) 4 SCC 66 , had held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay. 13. The Hon'ble Supreme Court in Collector, Land Acquisition, Anantnag Vs. Katiji reported in AIR 1987 (SC) 1353 , has specifically held that Courts should take a liberal, justice-oriented, justifiable and reasonable approach in condoning the delay, that the Courts have been reminded that a party who, as per the present adversial legal system, has selected his advocate, briefed him and paid his fees can remain supremely confident that his lawyer will look after his interest and such an innocent party, who has done everything in his power and expected of him, should not suffer for the inaction, deliberate omission or misdemeanor of his counsel. 14. It is settled law that a third party should not suffer due to an inaction on the part of Advocate and that the matter should be decided on merits rather than a technical ground. 15. No doubt, as rightly contended by the learned counsel appearing for the respondents, the petitioner has not produced any medical records to substantiate his contention of ill-health. But the fact remains that the appeal papers for the first time came to be filed during Covid-19 and that too in the dropping in the box system. Moreover, as rightly pointed out by the learned counsel appearing for the respondents, the petitioner has also not taken any affidavit from the earlier counsel that the returned papers got mixed up with other bundles. But it is pertinent to note that the respondents have not specifically disputed the filing of the appeal during Covid-19 and returning of the same for rectification of some defects. As already pointed out, length of delay is no matter but acceptability of the explanation is the only criteria. 16. The Hon'ble Supreme Court in H.Dohil Constructions Company Private Limited Vs. Nahar Exports Limited and another reported in (2015) 1 SCC 680 , has held that while considering the condone delay petition, the conduct, behaviour and attitude of the party relating to his inaction or negligence are relevant factors to be taken into consideration. 17. 16. The Hon'ble Supreme Court in H.Dohil Constructions Company Private Limited Vs. Nahar Exports Limited and another reported in (2015) 1 SCC 680 , has held that while considering the condone delay petition, the conduct, behaviour and attitude of the party relating to his inaction or negligence are relevant factors to be taken into consideration. 17. As already pointed out, the second respondent in her counter statement has taken a stand that the petitioner cannot succeed in the appeal. At this stage, we are not concerned with the merits of the case and the same can only be gone into, in the main appeal. 18. On considering the entire facts and circumstances of the case and also the legal position above referred, this Court is of the view that the petitioner should be given an opportunity to prosecute the appeal and for that purpose, the delay occurred has to be condoned. As rightly contended by the learned counsel appearing for the petitioner, if the delay is not condoned, the petitioner will suffer irreparable loss. But at the same time, considering the length of delay, this Court is of the further view that the petitioner must be mulcted with heavy costs. 19. In the result, this Civil Miscellaneous Petition will be allowed on payment of cost of Rs.10,000/- (Rupees Ten Thousand only) to the respondents and Rs.5,000/- (Rupees Five Thousand only) to the High Court Legal Service Authority attached to this Bench, by the petitioner on or before 13.02.2025, failing which, this petition shall stand dismissed automatically. 20. Post the matter on 14.02.2025 for reporting compliance.