Alagesan vs Amudha
2021 Latest Caselaw 687 Mad

                                                                                  M.P.No.1 of 2013 in
                                                                         C.M.S.A.SR.No.82100 of 2013

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 08.01.2021

                                                       CORAM:

                            THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

                                                   M.P.No.1 of 2013
                                                          in
                                             C.M.S.A.SR.No.82100 of 2013

                     Alagesan                                                        .. Petitioner
                                                          Vs.

                     Amudha                                                        .. Respondent

                     PRAYER: M.P.No.1 of 2013 is filed under Section 5 of the Limitation
                     Act, to condone the delay of 314 days in filing the above appeal, against
                     the judgment and decree dated 27.06.2012 passed in C.M.A.No.4 of 2011
                     on the file of Principal District Judge, Krishnagiri, reversing the
                     judgment and decree dated 18.01.2011 on the file of Principal
                     Subordinate Judge, Krishnagiri.

                     C.M.S.A.SR.No.82100 of 2013 is filed under Section 100 of the Code of
                     Civil Procedure, against the judgment and decree dated 27.06.2012
                     passed in C.M.A.No.4 of 2011 on the file of Principal District Judge,
                     Krishnagiri, reversing the judgment and decree dated 18.01.2011 on the
                     file of Principal Subordinate Judge, Krishnagiri.

                                      For Petitioner   : Mr.T.Panchatsaram
                                      For Respondent   : No appearance




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https://www.mhc.tn.gov.in/judis/
                                                                                    M.P.No.1 of 2013 in
                                                                           C.M.S.A.SR.No.82100 of 2013

                                                        ORDER

The Civil Miscellaneous Petition on hand is filed under Section 5

of the Limitation Act, to condone the delay of 314 days in filing the

Civil Miscellaneous Appeal, against the judgment and decree dated

27.06.2012 passed in C.M.A.No.4 of 2011 on the file of Principal

District Judge, Krishnagiri, reversing the judgment and decree dated

18.01.2011 on the file of Principal Subordinate Judge, Krishnagiri.,

2. The only reason stated for condoning the huge delay of 314 days

in filing the Civil Miscellaneous Second Appeal is that the petitioner had

misplaced the order copy and in spite of the efforts taken, he could not

able to trace the papers. Thus, there is a delay of 314 days in filing the

Civil Miscellaneous Second Appeal.

3. Mere statement that the order copy was misplaced is insufficient

to condone the enormous delay of 314 days. In the event of condoning

such a huge delay in a mechanical manner, every litigant will simply filed

an affidavit by stating that the order copy or bundle is misplaced and he

https://www.mhc.tn.gov.in/judis/ M.P.No.1 of 2013 in C.M.S.A.SR.No.82100 of 2013

is unable to trace the order copy or bundle within the time limit. Thus,

every such reason is to be substantiated with documentary evidence and

mere statement is insufficient to condone such a long delay.

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

acceptable reason for the purpose of condoning the enormous delay of

314 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

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

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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

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

https://www.mhc.tn.gov.in/judis/ M.P.No.1 of 2013 in C.M.S.A.SR.No.82100 of 2013

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

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

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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.

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 314 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

https://www.mhc.tn.gov.in/judis/ M.P.No.1 of 2013 in C.M.S.A.SR.No.82100 of 2013

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.

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 314 days are neither candid nor convincing

and consequently, the Civil Miscellaneous Petition in M.P.No.1 of 2013

stands dismissed and consequently, C.M.S.A.SR.No.82100 of 2013 is

rejected at the SR Stage itself. No costs.

08.01.2021 Kak Index:Yes Speaking order

https://www.mhc.tn.gov.in/judis/ M.P.No.1 of 2013 in C.M.S.A.SR.No.82100 of 2013

S.M.SUBRAMANIAM, J.

Kak To

1.The Principal District Judge, Krishnagiri.

2.The Principal Subordinate Judge, Krishnagiri.

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

M.P.No.1 of 2013 in C.M.S.A.SR.No.82100 of 2013

08.01.2021

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