Madras High Court
P.Murugesan vs M.Subramaniam on 19 January, 2021
MP No.1 of 2014
in CMA SR No.44623 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 19-01-2021
Coram
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
MP No.1 of 2014
in
CMA SR No.44623 of 2014
P.Murugesan .. Petitioner/Appellant
vs.
1.M.Subramaniam
2.Sakkarapani .. Respondents/Respondents
PRAYER: MP No.1 of 2014 is filed under Section 5 of the Limitation Act,
to condone the delay of 1,287 days in filing the above Civil Miscellaneous
Appeal.
CMA SR No.44623 of 2014 is preferred against the fair and decretal order
dated 13.09.2010 in I.A.No.789 of 2009 in O.S.No.213 of 2006 on the file
of the Principal District Court, Erode.
For Petitioner : Mr.C.R.Prasanan
1/14
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MP No.1 of 2014
in CMA SR No.44623 of 2014
For Respondents : Mr.S.Natana Rajan
ORDER
The Miscellaneous Petition on hand is filed to condone the delay
of 1,287 days in filing the Civil Miscellaneous Appeal.
2. Learned counsel appearing on behalf of the petitioner
vociferously contended that the petitioner has got some genuine reasons for
the delay. To substantiate the said contention, he solicited the attention of
this Court with reference to the reasons stated in paragraphs-3,6,7 and 9 of
the affidavit filed in support of this miscellaneous petition.
3. Paragraph-3 deals with certain facts, which may not be a
ground for condoning such a long delay.
4. As far as paragraph-6 is concerned, it is stated that the
petitioner was convicted in a criminal case in the year 2013. The order copy
of lower court in connection with the present appeal was delivered to the
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in CMA SR No.44623 of 2014
petitioner on 10.11.2010. Therefore, the conviction imposed in the year
2013 to undergo imprisonment of four months may not have relevance with
reference to the appeal to be filed in the present Civil Miscellaneous
Appeal.
5. Another ground stated is that the petitioner married one
Smt.Lakshmi as his second wife and a police complaint was registered by
the first wife. Thus, he ran along with the second wife to some other place.
He was residing in various places. Such personal reasons on account of the
second marriage cannot be a valid one and this Court is not inclined to
accept such grounds for the purpose of condoning the delay of 1,287 days.
6. Perusal of the entire affidavit reveals that there is no acceptable
ground for the purpose of condoning the enormous delay.
7. Uncondonable delay cannot be condoned in a routine manner.
Law of limitation is substantive. Litigations / appeals are expected to be
filed within the period of limitation as contemplated under the Statutes.
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in CMA SR No.44623 of 2014
Rule is to follow limitation. Condonation of delay is an exception.
Exceptions are to be exercised discreetly, if the reasons furnished are
genuine and acceptable. The Courts are vested with the discretion to
condone the delay. This does not mean that enormous delay are to be
condoned mechanically. Undoubtedly, if the reasons are candid and
convincing, then the Courts are empowered to exercise its power of
discretion so as to condone the delay. Power of discretion is a double-edged
weapon. Thus, the discretionary powers are to be exercised cautiously and
uniformly. Exercise of power of discretion if made excessively, would
defeat the purpose and object of the law of limitation. The Courts are
expected not to travel beyond the permissible extent, so as to condone the
enormous delay in a routine or mechanical manner. Power of discretion is to
be exercised to mitigate the injustice, if any occurred to the litigants.
8. A fine distinction is to be drawn in respect of 'acceptability' and
'unacceptability' as far as the condonation of delay is concerned. The
reasons and its genuinity are important for condoning the delay. It became
unnecessary that the Courts have to consider the precedents and condone
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the delay thereafter or reject the same. There are judgments far and against,
but predominantly the facts, circumstances and the genuinity of the reasons
of each case plays a pivotal role in considering the relief of condonation of
delay.
9. Question may arise the purpose and object of the law of
limitation as refusal of condonation of delay sometime causes denial of
rights to the litigants. However, there is a definite purpose for prescription
of period of limitation for institution of litigations. Different time limits are
prescribed for different kinds of litigations. However, there is a strong
reason for such prescription of limitation in various statutes. The litigants
are always expected to be vigilant over their rights and liabilities, duties and
responsibilities. If any citizen of our great nation is allowed to exercise his
right at his whims and fancies without reference to the law of limitation,
circumstances may arise that the rights of other fellow citizens are
prejudiced or affected. Rights cannot be exercised unguidedly. All rights
including fundamental rights under the Constitution of India is certainly
qualified and subject to various restrictions under other laws. Thus, the
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MP No.1 of 2014
in CMA SR No.44623 of 2014
rights of citizen and corresponding duty towards the other fellow citizen are
to be balanced in such a manner without causing any prejudice, which
resulted prescription of law of limitation. Exercise of right by a citizen
cannot infringe the right of other fellow citizen. Rights and duties are
corresponding and therefore, the law require a limitation for institution of
litigations.
10. Any citizen slept over his right, cannot wake up one fine
morning and knock the doors of the Court for redressal of his grievances.
The person, who slept over, has to loose his right and efflux of time results
expiry of the cause. In the event of institution of litigation after a prolonged
period, the other person, who has to defend the litigation will not only
suffer, but would lead to harassment. These all are the mitigating factors,
which all are to be considered, while dealing with the law of limitation as
contemplated under various statutes. Thus, the law of limitation has got a
definite reasoning, logic and various time limitations are prescribed under
various statutes by adopting the principles of “Doctrine of Reasonableness”.
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11. The principles of reasonableness would be adopted with
reference to the nature of litigations to be instituted. Various time limits are
prescribed for Civil litigations, Appeals and other kind of litigations,
considering various factors and by applying the Doctrine of reasonableness.
Thus, the law of limitation became substantive and to be followed
scrupulously in all circumstances and on exceptional cases, delay is to be
condoned, if the reasons are genuine and acceptable.
12. Exceptions can never be adopted as a rule. Exceptions are to
be exercised exceptionally and the power discretion is to be exercised
discreetly, so as to mitigate the injustice if any occurred. Condoning long
delay in a routine or mechanical manner is not a good practice by the
Courts. It would result to an injustice in respect of the opposite parties, who
are expected to defend the litigations. Thus, the power of discretion is to be
exercised cautiously and delay has to be condoned by recording reasons and
such reasons must be based on sound legal principles.
13. It is a trend in the Bar that whenever the petition for
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in CMA SR No.44623 of 2014
condonation of enormous delay is filed, requests are made to impose heavy
costs and condone the delay. This Court also witnesses many number of
such submissions made by the learned counsel appearing on behalf of the
petitioners that they are prepared to pay the costs. This Court is of the
humble opinion that by imposing heavy costs, long delay cannot be
condoned. In the event of condoning enormous delay by imposing heavy
costs, undoubtedly, the legal principles are not only compromised, but
'justice' is not done. The Courts are not supposed to compromise on the legal
principles under the guise of imposing certain costs. Costs are imposed on
certain circumstances, when the Court forms an opinion that lapses are
minor and on account of such minor lapses, the parties should not suffer or
their rights cannot be denied. However, costs cannot be in terms with the
number days of delay. It is not an arithmetic principle, where long delay is
to be condoned with heavy costs and for meagre delay, minimum costs is to
be imposed. Such a principle is opposed to public policy and this Court is
not prepared to accept such concept of imposing heavy costs for condoning
enormous delay by violating the Law of Limitation, which is substantive
and the legal principles.
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14. A person can trust another litigant for a reasonable period of
time. For instance, if the period of limitation is 90 days, then they are
expected to wait for some more time and thereafter immediately institute the
appeal. Contrarily, one cannot come to Court after 5 years and say that with
the fond hope that the fifth respondent would file CMA on behalf of the
petitioner and therefore, had waited and instituted the appeal after the delay
of 1,287 days. If at all such statements are true, they are not acceptable for
the purpose of condoning the huge delay of 1,287 days. This is exactly what
this Court has stated in the abovementioned paragraph that the
uncondonable delay cannot be condoned.
15. Learned counsel for the petitioner further contended that the
petitioner has got a good case on merits as the First Appellate Court has
erroneously arrived at a conclusion by remanding the matter back to the
Trial Court. However, this Court is of the considered opinion that
considering the merits and demerits of appeal in the condonation of delay
petition is not preferable. If the delay is meager, undoubtedly, this Court can
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take a lenient view in the matter of condonation of delay. However, if the
delay is enormous, then no other option but to decline the grant of relief.
Contrarily, if the Courts have decided the merits and demerits of the
judgment and decree passed by the Appellate Court for the purpose of
condoning the delay, then the very purpose and the object of condonation of
delay stands defeated. Therefore, such an approach may be impracticable
and not preferable.
16. Once the delay petition is filed, the same is to be dealt with
independently by scrutinising the reasons stated. For condoning such huge
delay, if the Courts are convinced with the reasons stated by the litigant for
the purpose of condoning the delay, then the Courts are expected to go into
the merits. Contrarily, condonation of delay cannot be allowed based on the
merits of the main appeal. Of course, it is not a trite law to follow. However,
in certain circumstances, Courts can take a lenient view if the reasons are
genuine. For instance, if the delay is about 3 months or six months, the
Courts can take a lenient view,but not otherwise.
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17. The learned counsel for the petitioner states that the order of
remand is contrary to the settled principles of law. The order of remand by
the First Appellate Court is unwarranted. However, these facts are irrelevant
as far as condone delay petition filed before this Court is concerned or to
condone the delay of 1453 days. This Court, at this juncture, cannot
adjudicate the merits of the judgments as well as the findings made.
18. However, the Appellate Court on remand, shall consider
whether remand is necessary or not. Order 41 Rule 23A stipulates remand of
cases. Rule 24 contemplates that the First Appellate Court has to decide the
issues finally, if the documents and evidences are available. Thus, certain
lapses by the trial Court or non-appreciation of evidence or documents may
not be a good ground for remanding the matter back to the trial Court as
such remand would cause longevity to litigations, further, would cause
inconvenience. Thus, the Courts are expected to remand the matter only
when it is absolutely required and it is not possible for the Appellate Court
to decide the issues finally or the suit was decided on preliminary issues.
The Trial Court is also expected to decide the issues uninfluenced by the
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observations made by the Appellate Court after remand. Equally the Courts
are not expected to record unnecessary findings if a decision is taken to
remand the matter back to the trial Court, as such findings would affect or
influence the trial Court, while dealing with the matter independently.
19. In view of the reasons stated above, this Court has no
hesitation in arriving a conclusion that the reasons stated by the petitioner
for condoning the long delay of 1,287 days are neither candid nor
convincing and consequently, the Civil Miscellaneous Petition in M.P.No.1
of 2014 stands dismissed and consequently, C.M.A.SR.No.44623 of 2014 is
rejected at the SR Stage itself. However, there shall be no order as to costs.
19-01-2021
Speaking Order/Non-Speaking Order.
Internet : Yes/No.
Index: Yes/No.
Svn
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MP No.1 of 2014
in CMA SR No.44623 of 2014
To
The Principal District Judge,
Erode.
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MP No.1 of 2014
in CMA SR No.44623 of 2014
S.M.SUBRAMANIAM, J.
Svn
MP No.1 of 2014
in
CMA SR No.44623 of 2014
19-01-2021
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