Madras High Court
S.Loganathan vs R.Venkatesan on 19 January, 2021
CMP No.12721 of 2016
in CMSA SR No.98997 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 19-01-2021
Coram
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
CMP No.12721 of 2016
in
CMSA SR No.98997 of 2015
S.Loganathan .. Petitioner/Appellant
vs.
1.R.Venkatesan
2.Sorna Gandhi
3.S.Kannan
4.Kiruthika .. Respondents/Respondents
PRAYER: CMP No.12721 of 2016 is filed under Order 41, Rule 3A r/w
Order 42 Rule 1 of CPC to condone the delay of 358 days in filing the
above Civil Miscellaneous Second Appeal.
For Petitioner : Mr.C.R.Prasanan
For Respondents : No Appearance
ORDER
https://www.mhc.tn.gov.in/judis/
CMP No.12721 of 2016
in CMSA SR No.98997 of 2015
The reasons stated for the delay are narrated in paragraph-5 of the
affidavit filed in support of the miscellaneous petition, which reads as
under:-
“5. After the judgment was delivered the
Senior Counsel Mr.Myilswamy appeared for me
called me and told me that he was aged and he
was unable to look after any case or track the
copy application filed by him. I have engaged
another counsel during November 2014 and I was
not able to know the fate of the copy application
or about the orders passed by the Appellate Court.
The records were also not returned by the
Appellate Court. On 28.04.2015 when the E.P.,
was posted I have received copies of the judgment
and decree from the office of the Senior Counsel.
During that time, this Hon'ble Court was closed
for summer vacation. In the first week of June
2015, a Junior Counsel belonging to a office of
Senior Counsel filed change of vakalath.
Subsequently, he told me that he would only
appear in the execution petition and take
adjournments till I make arrangements to file an
appeal. However, Senior Counsel died on
https://www.mhc.tn.gov.in/judis/
CMP No.12721 of 2016
in CMSA SR No.98997 of 2015
23.06.2015. I therefore, wanted guidance from
another Advocate at Coimbatore. He perused the
judgment and decree in I.A.No.35 of 2011 and
also the judgment and decree passed in
C.M.A.No.9 of 2012 and felt that a review petition
could be filed before the Execution Court itself. In
the second week of July, the said counsel told me
that the review is not possible and he advised me
to take the matter by way of a C.M.S.A before this
Hon'ble Court, during the first week of August,
2015. He also directed me to get the pleadings so
that the same are necessary for filing the Civil
Miscellaneous Appeal. I went back to the office of
the Senior Counsel who originally appeared for
me through his junior and I was not able to get the
copies of the original pleadings and bundle from
the Advocate's office. However, during the last
week of October 2015, I got the necessary papers
from the office of the said counsel. I was also
made to understand that I had to visit Chennai in
person and explain the aforesaid things to my
counsel at Chennai. During the second week of
November 2015, there was a heavy rain in
Chennai. I was not able to proceed to Chennai.
https://www.mhc.tn.gov.in/judis/
CMP No.12721 of 2016
in CMSA SR No.98997 of 2015
However, on I went to Chennai on 26.11.2015 and
handed over the papers to my counsel. My
Counsel prepared the Civil Miscellaneous Appeal
and filed it on 30.11.2015. However I was given to
understand that there is a delay of 358 days in
filing the above Civil Miscellaneous Second
Appeal. The aforesaid delay is neither willful nor
wanton but due to the aforesaid bonafide reasons.
Interest of justice requires that the delay of 358
days in filing the abvoe Civil Miscellaneous
Second Appeal be condoned as otherwise I will be
put to irreparable loss, hardship and damage. I
have a good case on merits. The Courts below
erred in overlooking that the respondent did not
file the original will before the Court to show that
his vendor namely Saraswathi got title.”
2. On account of the sudden death of the Senior Counsel
Mr.Myilswamy, the petitioner was unable to make suitable arrangements to
pursue the matter. The sequences are well narrated and therefore, this Court
is convinced with the reasons furnished for condoning the delay.
https://www.mhc.tn.gov.in/judis/
CMP No.12721 of 2016
in CMSA SR No.98997 of 2015
3. Accordingly, the delay of 358 days in filing the above Civil
Miscellaneous Second Appeal stands condoned and consequently, CMP
No.12721 of 2016 in CMSA SR No.98997 of 2015 stands allowed.
19-01-2021
Speaking Order/Non-Speaking Order.
Internet : Yes/No.
Index: Yes/No.
Svn
Note: Registry is directed to number the appeal,
if it is otherwise in order and post the matter for admission.
https://www.mhc.tn.gov.in/judis/
CMP No.12721 of 2016
in CMSA SR No.98997 of 2015
S.M.SUBRAMANIAM, J.
Svn
CMP No.12721 of 2016
in
CMSA SR No.98997 of 2015
19-01-2021
https://www.mhc.tn.gov.in/judis/
