Madras High Court
Babu vs The Forest Settlement Officer on 22 January, 2021
C.M.P.No.6253 of 2006 in
C.M.S.A.SR.No.35918 of 2005
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.01.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.P.No.6253 of 2006
in
C.M.S.A.SR.No.35918 of 2005
Babu .. Petitioner
Vs.
1.The Forest Settlement Officer,
Gudalur, The Nilgiris.
2.The District Forest Officer,
Gudalur, The Nilgiris. .. Respondents
PRAYER: C.M.P.No.6253 of 2006 is filed under Section 5 of the
Limitation Act, to condone the delay of 406 days in filing the Civil
Miscellaneous Appeal, against the judgment and decree dated 20.11.2003
made in C.M.A.No.49 of 2003 on the file of Court of District Judge of
the Nilgiris at Udhagamandalam.
C.M.S.A.SR.No.35918 of 2005 is filed under Section 100 C.P.C., r/w 10
(II) T.F.Act 1882, against the judgment and decree dated 20.11.2003
made in C.M.A.No.49 of 2003 on the file of Court of District Judge of
the Nilgiris at Udhagamandalam.
For Petitioner : Mr.S.Sairaman
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C.M.P.No.6253 of 2006 in
C.M.S.A.SR.No.35918 of 2005
ORDER
The Civil Miscellaneous Petition on hand is filed under Section 5
of Limitation Act, to condone the delay of 406 days in filing the Civil
Miscellaneous Appeal, against the judgment and decree dated 20.11.2003
made in C.M.A.No.49 of 2003 on the file of Court of District Judge of
the Nilgiris at Udhagamandalam.
2. The reason stated for condoning the delay of 406 days in filing
the Civil Miscellaneous Second Appeal that the Civil Miscellaneous
Appeal was dismissed by the District Court, Udagamandalam on
20.11.2003. The copy was made ready and received on 29.12.2003.
However, there was no communication from the counsel for the
petitioner at Nilgiris, he contacted in person and the petitioner could not
able to secure the case bundles. It is stated that the local counsel, has
referred the matter to one of his friends Mr.K.Rangarajan of Tambaram
Bar Association and he took the matter, stating that he will engage
another Advocate in Madras High Court. The petitioner narrates that
while contacting the Advocate, he could not able to secure informations
and therefore, the delay is to be condoned.
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C.M.P.No.6253 of 2006 in
C.M.S.A.SR.No.35918 of 2005
3. This Court is of the considered opinion that such reasons cannot
be accepted to condone the delay of 406 days. Mere Statement in the
appeal is insufficient. The reasons must be genuine and to be
substantiated, enabling this Court to condone the long delay.
4. The reasons stated in the affidavit must be convincing, enabling
this Court to consider the condonation of delay. Huge delay cannot be
condoned in a routine manner. Law of Limitation is substantive.
Condonation of delay is an exception. Only on genuine reasons, delay
can be condoned by exercising the power of discretion.
5. Mechanical way of condoning delay is undoubtedly
impermissible. The condonation of delay can never be a mechanical
affair and the High Court cannot condone the delay in a routine manner.
Courts are bound to ensure that the reasons for condoning such delays
are recorded, so as to set out a precedent and to avoid mechanical way of
condonation of delay. When the law provides limitation for preferring an
appeal and the proviso clause as contemplates the power of discretion to
the Court to condone the delay, then such discretionary powers are to be
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C.M.P.No.6253 of 2006 in
C.M.S.A.SR.No.35918 of 2005
exercised judiciously and by recording reasons. It is not as if, the High
Courts can condone the delay in a routine manner, so as to dilute the law
of limitation as contemplated under the Statutes. Thus, in all cases, where
there is an enormous delay in filing an appeal, the Courts are bound to
ascertain the reasons and its genuinity and the acceptability of such
reasons. Every litigant is expected to prefer an appeal within the period
of limitation stipulated in the statute. On account of certain unavoidable
reasons, if the appeal is filed with some delay, then the Courts are vested
with the discretionary power to condone such a delay. Rule is to file an
appeal in time and condonation is an exception, which is to be exercised
discreetly and by recording reasons. Recording of reasons are of
paramount importance in order to maintain consistency in the matter of
condonation of delay.
6. Discretionary powers are expected to be exercised by the Courts
judiciously. Any reasonable delay or the reasons, which all are valid and
acceptable alone can form an opinion for exercising the power of
discretion in the matter of condonation of delay. Thus, uncondonable
delay cannot be condoned and what all are the condonable delay and the
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C.M.P.No.6253 of 2006 in
C.M.S.A.SR.No.35918 of 2005
reasons stated and its validity, which all are important, so as to exercise
the power of discretion. The very purpose and object of providing
discretionary powers to the Courts are to ensure that the justice is done in
an appropriate manner. Because of some genuine delay, the rights of the
litigants cannot be neutralized and they should not be deprived of remedy
from the Court of law. Therefore, the power of discretion, which is
provided with genuine intention, cannot be diluted nor be neutralized by
condoning the delay in a casual manner. Thus, while exercising the
power of discretion, Courts are expected to be cautious and the reasons
for condonation must be recorded and in the absence of recording any
reasons, the Courts are not considering the substantive law of limitation.
Therefore, the law must prevail in all circumstances and discretion must
be exercised discreetly and with caution.
7. Uncondonable delay cannot be condoned. Law expects that
every such delay is to be explained. Unexplained delay cannot be
condoned. Such unexplained delay is to be construed as uncondonable.
Thus, delay under what circumstances, would be condonable is the
relevant point to be considered by the Courts, while condoning such
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C.M.P.No.6253 of 2006 in
C.M.S.A.SR.No.35918 of 2005
enormous delay.
8. Parties are expected to file their respective appeals within the
period of limitation stipulated in the statute. Undoubtedly, certain
unforeseen circumstances may be the reason for delay. However, such
unforeseen circumstances or reasons, which all are genuine, must be
clearly and truthfully explained in the affidavit filed in support of the
miscellaneous petition. In the present case, reading of the affidavit
reveals that there is no valid and acceptable reason for the purpose of
condoning the enormous delay of 406 days in filing an appeal. In the
event of condoning such a long delay, undoubtedly, the same will set a
wrong precedent and every such delay is to be condoned in other
circumstances. Therefore, in the absence of any valid reasons, the Courts
would not condone such an enormous delay. Undoubtedly, meagre delay
can be condoned by taking a lenient view. Even to condone such a small
delay, Court has to find out, whether there is any sensible reason for such
delay. Therefore, the Courts have to adopt a liberal approach only in
small delays and certainly not in the cases of enormous delay. Thus, this
Court has no hesitation in arriving a conclusion that the reasons stated in
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C.M.P.No.6253 of 2006 in
C.M.S.A.SR.No.35918 of 2005
the affidavit filed in support of the miscellaneous petition are neither
candid nor convincing and therefore, the delay is to be construed as
uncondonable.
9. 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 406 days are neither candid nor convincing
and consequently, the Civil Miscellaneous Petition in C.M.P.No.6253 of
2006 stands dismissed and consequently, C.M.S.A.SR.No.35918 of 2005
is rejected at the SR Stage itself. No costs.
22.01.2021
Kak
Index:Yes
Speaking order
S.M.SUBRAMANIAM, J.
https://www.mhc.tn.gov.in/judis/
C.M.P.No.6253 of 2006 in
C.M.S.A.SR.No.35918 of 2005
Kak
To
1.The Court of District Judge,
Nilgiris, Udhagamandalam.
2.The Sub Assistant Registrar,
A.E.Section,
High Court, Madras.
C.M.P.No.6253 of 2006
in
C.M.S.A.SR.No.35918 of 2005
22.01.2021
https://www.mhc.tn.gov.in/judis/
