Arulmighu Marriamman Temple vs Karuppayammal
2021 Latest Caselaw 1636 Mad

                                                                                    C.M.P.No.3425 of 2018 in
                                                                                  C.M.A.SR.No.36774 of 2017

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                       DATED: 25.01.2021

                                                           CORAM:

                            THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

                                                 C.M.P.No.3425 of 2018
                                                          in
                                               C.M.A.SR.No.36774 of 2017

                     Arulmighu Marriamman Temple,
                     Veerappanchatram, Erode,
                     Rep.by its Executive Officer                                           .. Petitioner
                                                               Vs.

                     Karuppayammal                                                       .. Respondent

                     PRAYER: C.M.P.No.3425 of 2018 is filed under Section 5 of the
                     Limitation Act, to condone the delay of 763 days in filing the appeal.

                     C.M.A.SR.No.36774 of 2017 is filed under Order 43 Rule 1(u) of the
                     Code of Civil Procedure, against the judgment and decree of the learned
                     III Additional Subordinate Judge, Erode dated 19.12.2014 passed in
                     A.S.No.81 of 2014, wherein set aside the judgment and decree dated
                     04.01.2014, passed in I.A.No.726 of 2013 in O.S.No.119 of 2012 and
                     remanded the matter to the trial Court for deciding the suit.

                                      For Petitioner       : Mr.R.Parthasarathy




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https://www.mhc.tn.gov.in/judis/
                                                                               C.M.P.No.3425 of 2018 in
                                                                             C.M.A.SR.No.36774 of 2017

                                                      ORDER

The Civil Miscellaneous Petition on hand is filed under Section 5

of the Limitation Act, to condone the delay of 763 days in filing the Civil

Miscellaneous Appeal, against the judgment and decree of the learned III

Additional Subordinate Judge, Erode dated 19.12.2014 passed in

A.S.No.81 of 2014.

2. The petitioner is Arulmighu Marriamman Temple,

Veerappanchatram, Erode. The appeal is filed against the order of remand

passed by the First Appellate Court.

3. The delay in filing the appeal is 763 days. The reason stated is

that lower court counsel informed Executive officer that he will applied

for certified copy. In view of the urgency, the Executive officer contacted

his counsel and enquired about the certified copy. However, he was

informed that order has not been received. Thereafter, the Executive

officer checked that the order copy section and found that the copy

application for issuing certified copy of the order was not even filed by

https://www.mhc.tn.gov.in/judis/ C.M.P.No.3425 of 2018 in C.M.A.SR.No.36774 of 2017

the Lower Court counsel. The petitioner thereafter filed an application on

24.02.2017 and received the order copy.

4. This Court is of the considered opinion that the Executive

officer is expected to be vigilant. Even if some professional negligence

has been committed by the counsel, the Executive officer is bound to

initiate appropriate action against the counsel, who committed such

negligence or lapses. Contrarily, he cannot simply say that the copy

application was filed by the learned counsel and therefore, there is a

delay of 763 days in filing. The delay is enormous and the reasons stated

is unacceptable. This apart, even notice has not been served to the

respondent for the past 5 years.

5. Perusal of the affidavit shows that there is absolutely no

acceptable reason for the purpose of condoning the enormous delay of

763 days in filing the appeal. 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

https://www.mhc.tn.gov.in/judis/ C.M.P.No.3425 of 2018 in C.M.A.SR.No.36774 of 2017

is substantive. Condonation of delay is an exception. Only on genuine

reasons, delay can be condoned by exercising the power of discretion.

6. 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

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

https://www.mhc.tn.gov.in/judis/ C.M.P.No.3425 of 2018 in C.M.A.SR.No.36774 of 2017

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.

7. 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

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

https://www.mhc.tn.gov.in/judis/ C.M.P.No.3425 of 2018 in C.M.A.SR.No.36774 of 2017

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.

8. 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

enormous delay.

9. 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

https://www.mhc.tn.gov.in/judis/ C.M.P.No.3425 of 2018 in C.M.A.SR.No.36774 of 2017

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 763 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

the affidavit filed in support of the miscellaneous petition are neither

candid nor convincing and therefore, the delay is to be construed as

uncondonable.

https://www.mhc.tn.gov.in/judis/ C.M.P.No.3425 of 2018 in C.M.A.SR.No.36774 of 2017

S.M.SUBRAMANIAM, J.

kak

10. 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 763 days are neither candid

nor convincing and consequently, the Civil Miscellaneous Petition in

C.M.P.No.3425 of 2018 stands dismissed and consequently,

C.M.A.SR.No.36774 of 2017 is rejected at the SR Stage itself. No costs.

25.01.2021

Kak Index:Yes Speaking order

To

1.The III Additional Subordinate Judge, Erode.

2.The Sub Assistant Registrar, A.E.Section, High Court, Madras.

C.M.P.No.3425 of 2018 in C.M.A.SR.No.36774 of 2017

https://www.mhc.tn.gov.in/judis/