Madras High Court
Y.V.Sekar vs A.Parimala Kanthi on 7 December, 2021
A.S. Sr. No.41805 of 2021
and C.M.P. No.18339 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.12.2021
CORAM:
THE HONOURABLE MR. JUSTICE S.S.SUNDAR
A.S. Sr. No.41805 of 2021
and C.M.P. No.18339 of 2021
A.S. Sr. No.41805 of 2021
Y.V.Sekar .. Appellant
Vs.
1. A.Parimala Kanthi
2. R.Sasikala
Y.V. Nappin Ammal (Deceased) .. Respondents
Appeal Suit filed under Section 96 and Order 41 Rule 1 C.P.C., to set
aside the judgment and final decree dated 01.03.2018 made in I.A. No.163
of 2013 in O.S. No.371 of 2008 on the file of Additional District Court,
Chengalpattu and thereby dismiss the same.
For Appellant : Mr. R.Raj Mohan
For Respondents : Mr. Adinarayana Rao
1/10
https://www.mhc.tn.gov.in/judis
A.S. Sr. No.41805 of 2021
and C.M.P. No.18339 of 2021
C.M.P. No.18339 of 2021
in A.S. Sr. No.41805 of 2021
Y.V.Sekar .. Petitioner
Vs.
1. A.Parimala Kanthi
2. R.Sasikala .. Respondents
Civil Miscellaneous Petition filed under Order XLI Rule 3 A C.P.C. to
condone the delay of 655 days in preferring the above appeal against the
final decree and judgment dated 01.03.2018 made in I.A. No.163 of 2013
in O.S. No.371 of 2008 on the file of Additional District Court,
Chengalpattu.
For Petitioner : Mr. R.Raj Mohan
For Respondents : Mr. Adinarayana Rao
JUDGMENT
C.M.P. No.18339 of 2021
in A.S. Sr. No. 41805 of 2021
This petition is filed to condone the delay of 655 days in
preferring the above appeal against the final decree and judgment dated
01.03.2018 made in I.A. No.163 of 2013 in O.S. No.371 of 2008.
https://www.mhc.tn.gov.in/judis
A.S. Sr. No.41805 of 2021
and C.M.P. No.18339 of 2021
2. The petitioner in this petition is the first defendant in the suit in
O.S. No.371 of 2018. The respondents in this petition, as plaintiffs, filed a
suit in O.S. No.371 of 2018 for partition and separate possession of their
3/4th share in the suit property. It is to be seen that the petitioner, in the
written statement, opposed the relinquishment of one half share by the
second defendant in favour of the plaintiffs by a document dated
28.12.2005. It is admitted that a preliminary decree was passed in the suit
on 22.01.2013. As per the preliminary decree, the plaintiffs were entitled to
3/4th share in the suit property which is measuring an extent of one ground
and 1278 sq.ft. in Aadambakkam Village, Kancheepuram District. It is
admitted that the preliminary decree has become final and the appeal as
against the preliminary decree filed by the petitioner in A.S. No.190 of
2013 was also dismissed on 07.08.2017. Thereafter, the respondent
plaintiffs filed an Interlocutory Application in I.A. No.163 of 2013 for
passing of final decree. An Advocate Commissioner was appointed in I.A.
No.163 of 2013. The Commissioner filed a report along with a detailed
plan suggesting the mode of partition as per the preliminary decree. It is to
be noted that the division of suit property suggested by the Commissioner
https://www.mhc.tn.gov.in/judis
A.S. Sr. No.41805 of 2021
and C.M.P. No.18339 of 2021
was also on the basis of valuation of both building and vacant land. As
against the final decree that was passed on 01.03.2018, the petitioner has
preferred the above appeal with an inordinate delay of 655 days in filing
the appeal. The question is whether the petitioner has shown sufficient
cause for the delay in preferring the above appeal.
3. In the affidavit filed in support of this petition, the petitioner has
stated that the petitioner has tripped in the stair case and fell down and that
his right leg got broken. It is stated that due to the injury caused to the
petitioner, he was immobilised. Though the petitioner admit that he had
undergone treatment for fracture in his leg, it is stated that the petitioner's
treatment took enormous time to become normal. He also stated in the
affidavit that the National Lockdown announced during March 2020 due to
spreading of Corona has also resulted in delay of 655 days in preferring the
appeal.
4. It is seen that the appeal was presented only in April 2021. It is
admitted that the respondent plaintiffs have filed an Execution Petition in
E.P. No.9 of 2018. Notice in the Execution Petition was also issued to the
https://www.mhc.tn.gov.in/judis
A.S. Sr. No.41805 of 2021
and C.M.P. No.18339 of 2021
revision petitioners and the Execution Petition was adjourned for filing
counter by the revision petitioners from 12.11.2018. Despite the execution
petition was filed in the year 2018, the revision petitioners are taking time
to file counter. The above appeal was filed with a delay of almost two
years. Except the injury suffered by the petitioner, no other valid reason is
stated by the petitioner to condone the inordinate delay of nearly two years
in preferring the appeal. When the preliminary decree passed in the suit for
partition has become final, the petitioner has now filed an appeal with an
inordinate delay of 655 days only on the ground that he was taking
treatment for the fracture in his leg. No document is filed to show that the
petitioner suffered such fracture or that he was taking treatment for such a
long time. In the counter affidavit filed by the first respondent, it is stated
that the petitioner has filed the appeal itself to prolong the litigation without
any cause or reason for the delay. As pointed out earlier, the preliminary
decree passed on 22.01.2013 has become final. The issue that was raised
by the petitioner in the memorandum of grounds opposing the final decree
is regarding valuation. It is contended by the appellant that the suit
property is indivisible as per the Commissioner's report and sketch and
therefore, the Court ought to have proceeded to sell the property in
https://www.mhc.tn.gov.in/judis
A.S. Sr. No.41805 of 2021
and C.M.P. No.18339 of 2021
accordance with law. It is seen that the Commissioner's report is in favour
of an amicable division. This Court, considering the fact that the parties
are relatives, suggested an amicable settlement as the very issue raised by
the petitioner was regarding allotment.
5. It is not in dispute that the petitioner has only one fourth share in
the suit property. However, it is admitted that the petitioner is in possession
and control of the building which is also the subject matter of the suit for
partition. It is suggested by the learned counsel for the respondents that the
petitioner has filed an appeal to protract the proceedings as he is in
enjoyment of the building which is constructed in an area exceeding his
1/4th share. It is admitted that the suit property is an extent of 3678 sq.ft..
The Commissioner has found the actual extent as 3733 sq.ft. including the
compound wall. Learned counsel appearing for the petitioner though
agreed for a mutual settlement among the parties, this Court found that the
offer made by the petitioner's counsel was absurd and this Court had
reasons to believe that the petitioner wants to take advantage of his
possession over the building to dictate terms to the respondent with certain
amount of greed. The building is constructed in the suit property over an
https://www.mhc.tn.gov.in/judis
A.S. Sr. No.41805 of 2021
and C.M.P. No.18339 of 2021
extent of 900 sq.ft. Since the petitioner is having only 1/4th share, it was
suggested that he is not entitled for allotment of whole building. Therefore,
the mode of division suggested was to allot 1/4 th of the land to the
petitioner.
6. The suggestion based on the assessment of the value for the
building and land appears to be fair. However, the learned counsel for the
petitioner, in the course of settlement, projected a value which is not even
consonance with the value suggested by his client before the lower Court.
Certainly, the petitioner who is entitled to 1/4th share cannot be allotted the
whole building. The petitioner has expressed his unwillingness to pay the
price if he has to take the building towards his share. Hence there cannot
be a division allotting the building portion in favour of the petitioner. In
such circumstances, the attitude of the petitioner was to delay the process
without any bonafides. However, the question before this Court, to decide
the petition to condone the delay, is whether the petitioner has shown
sufficient cause or excuse for the inordinate delay of nearly two years.
https://www.mhc.tn.gov.in/judis
A.S. Sr. No.41805 of 2021
and C.M.P. No.18339 of 2021
7. The explanation offered by the petitioner for the long delay is not
supported by any document. It is to be seen that the petitioner's injury
cannot be an excuse even to give instructions to his counsel regarding the
mode of allotment. The suggestion of the Advocate Commissioner is not
agreed by the petitioner. In the petition, the petitioner has raised grounds to
the effect that the building ought to have been allotted to the petitioner.
Considering the overall circumstances, this Court is of the view that the
intention of the petitioner is to drag on the proceedings so that the plaintiffs
will be deprived of their right to have their due share as per the preliminary
decree.
8. This Court also observed the unreasonable demand of the petitioner
regarding allotment. Some false particulars were projected to hike the value
of the building when this Court suggested the allotment of building to the
share of the respondents. However the petitioner did not agree to pay the
amount as per his own valuation to the respondent to take the building to
his one fourth share. The conduct and attitude as seen in the course of
negotiation clearly indicates the intention behind this litigation which is to
prolong the litigation as far as possible taking advantage of his possession.
https://www.mhc.tn.gov.in/judis
A.S. Sr. No.41805 of 2021
and C.M.P. No.18339 of 2021
Therefore, this Court is not inclined to show any indulgence to the
petitioner. The reasons stated by the petitioner are not sufficient to condone
the delay. The excuse will not cover the whole delay. Further there is no
material produced before this Court to substantiate the petitioner's
contention regarding the cause for the delay. Though some amount of
discretion is available to the Court in the matter like this, this Court is
unable to exercise its discretion in favour of person whose conduct is not
only unreasonable but also greedy with a calculated intention to deprive the
rights of legitimate sharers to get their property through Court.
As a result this Civil Miscellaneous Petition is dismissed. No costs.
The appeal in A.S. Sr. No.41805 of 2021, is rejected at the Sr. stage itself.
07.12.2021
Index: Yes / No
Speaking order / Non speaking order
bkn
S.S.SUNDAR, J.,
https://www.mhc.tn.gov.in/judis
A.S. Sr. No.41805 of 2021
and C.M.P. No.18339 of 2021
bkn
A.S. Sr. No. 41805 of 2021
and C.M.P. No.18339 of 2021
07.12.2021
https://www.mhc.tn.gov.in/judis
