Madras High Court
The Branch Manager vs Pandiammal on 29 January, 2021
C.M.P. (MD) No.6581 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.01.2021
CORAM:
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
C.M.P. (MD) No.6581 of 2020
in
CMA(MD).No.SR394 of 2015
The Branch Manager
National Insurance Company Ltd.,
first Floor
No.1631/1B, Salem Bhavani Main Road
Sankari, Salem : Petitioner/Appellant
Vs.
1.Pandiammal
2.Muthukrishnan
3.Yoganathan
4.Shanmugam Pillai
5.Karalan
6.The Manager
Reliance Insurance Company Limited
Srilakshmi Complex
First Floor, Bharathi Street
Omalur Main Road
Sornapuri, Salem 636 004 :Respondents/Respondents
1/8
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C.M.P. (MD) No.6581 of 2020
PRAYER in C.M.P(MD).No.6581 of 2020: The Civil Miscellaneous
Petition has been filed under Order 4 Rule 9(4) of A.S Rules, to condone
the delay of 2017 days in representing the appeal papers in CMA.SR.No.
394 of 2015 on the file of this Court.
PRAYER in C.M.A.(MD).SR.No.394 of 2015: The Civil Miscellaneous
Appeal has been filed under Section 173 of Motor Vehicles Act, 1988
against the Judgment and Decree dated 21.08.2014 passed in
M.C.O.P.No.61 of 2013 on the file of the Motor Accident Claims
Tribunal, (Additional District Judge), Virudhunagar.
For Petitioner : Mr.S.Srinivasa Raghavan
For R1 to R3 : Mr.M.Sarangan
For R4 to R6 : No appearance
ORDER
This petition has been filed by the petitioner seeking to condone
the delay of 2017 days in representing the above Civil Miscellaneous
Appeal.
2.The learned counsel for the petitioner would state that the Court
office has returned the appeal papers on 08.01.2015 for production of
original deposit receipt and certain other documents. The appeal papers
ought to have been represented within 10 days time on or before
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C.M.P. (MD) No.6581 of 2020
18.01.2015. In the meantime, the clerk of the petitioner's counsel to have
represented the appeal papers complying with other defects on
19.02.2015 without production of original deposit receipt. While so, the
new clerk who was engaged has without verifying the non-availability of
original deposit receipt, represented the appeal papers on 05.10.2020.
The Court office has once again returned the appeal papers on
02.11.2020. The original deposit receipt has been made available to the
petitioner from the Tribunal which has been immediately forwarded to
the present counsel on record. In the above circumstances, there has been
a delay of 2017 in representing the above appeal.
3. Heard the learned counsel for the petitioner and also perused
the materials available on record.
(i)In Esha Bhattacharjee v. Managing Committee of
Raghunathpur Nafar Academy & others, [2013 (5) CTC 547 (SC) :
2013 (5) LW 20], it was observed by the Supreme Court that there
should be a liberal, pragmatic, justice oriented, non-pedantic approach
while dealing with an Application for condonation of delay. The
principles elucidated at paras 15 and 16 of the said judgment, are
usefully extracted as follows:
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C.M.P. (MD) No.6581 of 2020
"15. From the aforesaid authorities the principles
that can broadly be culled out are:
(i) There should be a liberal, pragmatic, justice-
oriented, non-pedantic approach while dealing with an
application for condonation of delay, for the Courts are not
supposed to legalise injustice but are obliged to remove
injustice.
(ii) The terms sufficient cause should be
understood in their proper spirit, philosophy and purpose
regard being had to the fact that these terms are basically
elastic and are to be applied in proper perspective to the
obtaining fact-situation.
(iii) Substantial justice being paramount and
pivotal the technical considerations should not be given
undue and uncalled for emphasis.
(iv) No presumption can be attached to deliberate
causation of delay but, gross negligence on the part of the
Counsel or litigant is to be taken note of.
(v) Lack of bona fides imputable to a party seeking
condonation of delay is a significant and relevant fact.
(vi) It is to be kept in mind that adherence to strict
proof should not affect public justice and cause public
mischief because the Courts are required to be vigilant so
that in the ultimate eventuate there is no real failure of
justice.
(vii) The concept of liberal approach has to en
capsule the conception of reasonableness and it cannot be
allowed a totally unfettered free play.
(viii) There is a distinction between inordinate
delay and a delay of short duration or few days, for to the
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C.M.P. (MD) No.6581 of 2020
former doctrine of prejudice is attracted whereas to the latter
it may not be attracted. That apart, the first one warrants
strict approach whereas the second calls for a liberal
delineation.
(ix) The conduct, behaviour and attitude of a party
relating to its inaction or negligence are relevant factors to
be taken into consideration. It is so as the fundamental
principle is that the Courts are required to weigh the scale of
balance of justice in respect of both parties and the said
principle cannot be given a total go by in the name of liberal
approach.
(x) If the explanation offered is concocted or the
grounds urged in the application are fanciful, the Courts
should be vigilant not to expose the other side unnecessarily
to face such a litigation.
(xi) It is to be borne in mind that no one gets away
with fraud, misrepresentation or interpolation by taking
recourse to the technicalities of law of limitation.
(xii) The entire gamut of facts are to be carefully
scrutinized and the approach should be based on the
paradigm of judicial discretion which is founded on
objective reasoning and not on individual perception.
(xiii) The State or a public body or an entity
representing a collective cause should be given some
acceptable latitude.
16. To the aforesaid principles we may add some
more guidelines taking note of the present day scenario.
They are:
(a) An Application for condonation of delay
should be drafted with careful concern and not in a half
hazard manner harbouring the notion that the Courts are
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C.M.P. (MD) No.6581 of 2020
required to condone delay on the bedrock of the principle
that adjudication of a lis on merits is seminal to justice
dispensation system.
(b) An application for condonation of delay should
not be dealt with in a routine manner on the base of
individual philosophy which is basically subjective.
(c) Though no precise formula can be laid down
regard being had to the concept of judicial discretion, yet a
conscious effort for achieving consistency and collegiality of
the adjudicatory system should be made as that is the
ultimate institutional motto.
(d) The increasing tendency to perceive delay as a
non-serious matter and, hence, lackadaisical propensity can
be exhibited in a non-challan manner requires to be curbed,
of course, within legal parameters."
5.Now coming to the present facts and circumstances of the case,
the petitioner has stated in a routine manner that the Court office has
returned the appeal papers on 08.01.2015 for production of original
deposit receipt and certain other documents. In the meantime, the clerk
of the petitioner's counsel to have represented the appeal papers
complying with other defects on 19.02.2015 without production of
original deposit receipt. While so, the new clerk who was engaged has
without verifying the non-availability of original deposit receipt,
represented the appeal papers on 05.10.2020. The Court office has once
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C.M.P. (MD) No.6581 of 2020
again returned the appeal papers on 02.11.2020. The original deposit
receipt has been made available to the petitioner from the Tribunal which
has been immediately forwarded to the present counsel on record. Due
to the above reason, there was a delay of 2017 days in representing the
appeal.
6.It is seen that no valid reason has been adduced for condoning
the delay of 2017 days in representing the above Civil Miscellaneous
Appeal. The delay is not minimal and it is a very long delay. The
reasons stated for the delay are not acceptable reasons. Therefore, this
Court is not inclined to condone the delay of 2017 days in representing
the appeal.
7.Accordingly, this Civil Miscellaneous Petition is dismissed.
In view of the order passed in CMP(MD)No.6581 of 2020, connected
C.M.A.(MD)SR.No.394 of 2015 is rejected at the SR stage itself. No
costs.
29.01.2021
Internet : Yes / No
Index : Yes / No
msa
http://www.judis.nic.in
C.M.P. (MD) No.6581 of 2020
J.NISHA BANU,J.
msa
Note:In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is
presented is the correct copy, shall be the responsibility of the
Advocate/litigant concerned.
To
The Motor Accident Claims Tribunal
(Additional District Judge), Virudhunagar.
C.M.P. (MD) No.6581 of 2020
in
CMA(MD).No.SR394 of 2015
29.01.2021
http://www.judis.nic.in
