R.Badrayyan vs T.S.Rajendran
2021 Latest Caselaw 959 Mad

                                                                           CMP No.13806 of 2017
                                                                     in CMA SR No.90140 of 2016

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                Dated : 18-01-2021

                                                     Coram

                              THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM

                                              CMP No.13806 of 2017
                                                      in
                                             CMA SR No.90140 of 2016


                     R.Badrayyan                                .. Petitioner/Appellant

                                                       vs.

                     1.T.S.Rajendran
                     2.Smt.S.Vijaya Rani
                     3.Smt.S.Chanthini
                     4.T.S.Devarajan
                     5.Mrs.Manickam
                     6.Divya
                     7.Kausalya
                     8.Mallikerjun
                     9.Badrammal
                     10.Rajammal
                     11.Kanaga Rathinam
                     12.Iyyappan
                     13.Sundaraj
                     14.Hari
                     15.Alagirisamy                             .. Respondents/Respondents




                     1/14


https://www.mhc.tn.gov.in/judis/
                                                                              CMP No.13806 of 2017
                                                                        in CMA SR No.90140 of 2016


                     PRAYER: CMP No.13806 of 2017 is filed under Section 5 of the
                     Limitation Act, to condone the delay of 1,453 days in filing the above Civil
                     Miscellaneous Appeal.


                     CMA SR No.90140 of 2016 is preferred against the judgment and decree
                     passed in A.S.No.48 of 2011 passed by the Learned I Additional District
                     Judge, Coimbatore dated 31.08.2012 by remanding the matter back after
                     setting aside the judgment and decree passed by the Learned II Additional
                     Sub Judge, Coimbatore in O.S.No.606 of 2005 dated 22.12.2010.

                                     For Petitioner          : Mr.C.R.Prasanan

                                     For Respondents         : No Appearance

                                                         ORDER

Uncondonable delay cannot be condoned in a routine manner. Law

of limitation is substantive. Litigations / appeals are expected to be filed

within the period of limitation as contemplated under the Statutes. Rule is to

follow limitation. Condonation of delay is an exception. Exceptions are to

be exercised discreetly, if the reasons furnished are genuine and acceptable.

The Courts are vested with the discretion to condone the delay. This does

not mean that enormous delay are to be condoned mechanically.

Undoubtedly, if the reasons are candid and convincing, then the Courts are

https://www.mhc.tn.gov.in/judis/ CMP No.13806 of 2017 in CMA SR No.90140 of 2016

empowered to exercise its power of discretion so as to condone the delay.

Power of discretion is a double-edged weapon. Thus, the discretionary

powers are to be exercised cautiously and uniformly. Exercise of power of

discretion if made excessively, would defeat the purpose and object of the

law of limitation. The Courts are expected not to travel beyond the

permissible extent, so as to condone the enormous delay in a routine or

mechanical manner. Power of discretion is to be exercised to mitigate the

injustice, if any occurred to the litigants.

2. A fine distinction is to be drawn in respect of 'acceptability' and

'unacceptability' as far as the condonation of delay is concerned. The

reasons and its genuinity are important for condoning the delay. It became

unnecessary that the Courts have to consider the precedents and condone

the delay thereafter or reject the same. There are judgments far and against,

but predominantly the facts, circumstances and the genuinity of the reasons

of each case plays a pivotal role in considering the relief of condonation of

delay.

https://www.mhc.tn.gov.in/judis/ CMP No.13806 of 2017 in CMA SR No.90140 of 2016

3. Question may arise the purpose and object of the law of

limitation as refusal of condonation of delay sometime causes denial of

rights to the litigants. However, there is a definite purpose for prescription

of period of limitation for institution of litigations. Different time limits are

prescribed for different kinds of litigations. However, there is a strong

reason for such prescription of limitation in various statutes. The litigants

are always expected to be vigilant over their rights and liabilities, duties and

responsibilities. If any citizen of our great nation is allowed to exercise his

right at his whims and fancies without reference to the law of limitation,

circumstances may arise that the rights of other fellow citizens are

prejudiced or affected. Rights cannot be exercised unguidedly. All rights

including fundamental rights under the Constitution of India is certainly

qualified and subject to various restrictions under other laws. Thus, the

rights of citizen and corresponding duty towards the other fellow citizen are

to be balanced in such a manner without causing any prejudice, which

resulted prescription of law of limitation. Exercise of right by a citizen

cannot infringe the right of other fellow citizen. Rights and duties are

corresponding and therefore, the law require a limitation for institution of

https://www.mhc.tn.gov.in/judis/ CMP No.13806 of 2017 in CMA SR No.90140 of 2016

litigations.

4. Any citizen slept over his right, cannot wake up one fine

morning and knock the doors of the Court for redressal of his grievances.

The person, who slept over, has to loose his right and efflux of time results

expiry of the cause. In the event of institution of litigation after a prolonged

period, the other person, who has to defend the litigation will not only

suffer, but would lead to harassment. These all are the mitigating factors,

which all are to be considered, while dealing with the law of limitation as

contemplated under various statutes. Thus, the law of limitation has got a

definite reasoning, logic and various time limitations are prescribed under

various statutes by adopting the principles of “Doctrine of Reasonableness”.

5. The principles of reasonableness would be adopted with

reference to the nature of litigations to be instituted. Various time limits are

prescribed for Civil litigations, Appeals and other kind of litigations,

considering various factors and by applying the Doctrine of reasonableness.

Thus, the law of limitation became substantive and to be followed

https://www.mhc.tn.gov.in/judis/ CMP No.13806 of 2017 in CMA SR No.90140 of 2016

scrupulously in all circumstances and on exceptional cases, delay is to be

condoned, if the reasons are genuine and acceptable.

6. Exceptions can never be adopted as a rule. Exceptions are to be

exercised exceptionally and the power discretion is to be exercised

discreetly, so as to mitigate the injustice if any occurred. Condoning long

delay in a routine or mechanical manner is not a good practice by the

Courts. It would result to an injustice in respect of the opposite parties, who

are expected to defend the litigations. Thus, the power of discretion is to be

exercised cautiously and delay has to be condoned by recording reasons and

such reasons must be based on sound legal principles.

7. It is a trend in the Bar that whenever the petition for

condonation of enormous delay is filed, requests are made to impose heavy

costs and condone the delay. This Court also witnesses many number of

such submissions made by the learned counsel appearing on behalf of the

petitioners that they are prepared to pay the costs. This Court is of the

humble opinion that by imposing heavy costs, long delay cannot be

https://www.mhc.tn.gov.in/judis/ CMP No.13806 of 2017 in CMA SR No.90140 of 2016

condoned. In the event of condoning enormous delay by imposing heavy

costs, undoubtedly, the legal principles are not only compromised, but

'justice' is not done. The Courts are not supposed to compromise on the legal

principles under the guise of imposing certain costs. Costs are imposed on

certain circumstances, when the Court forms an opinion that lapses are

minor and on account of such minor lapses, the parties should not suffer or

their rights cannot be denied. However, costs cannot be in terms with the

number days of delay. It is not an arithmetic principle, where long delay is

to be condoned with heavy costs and for meagre delay, minimum costs is to

be imposed. Such a principle is opposed to public policy and this Court is

not prepared to accept such concept of imposing heavy costs for condoning

enormous delay by violating the Law of Limitation, which is substantive

and the legal principles.

8. Based on the above principles, let us now consider the reasons

stated in the affidavit filed in respect of the present civil miscellaneous

appeal. The petitioner, in the present case, has stated that the judgment and

decree in A.S.No.48 of 2011 was delivered on 31.08.2012. The counsel for

https://www.mhc.tn.gov.in/judis/ CMP No.13806 of 2017 in CMA SR No.90140 of 2016

the petitioner filed copy application to obtain judgment and decree in

A.S.No.48 of 2011, soon after the judgment and decree were delivered. The

judgment copies could not be obtained immediately. After one year, the

judgment and decree were made ready. The Advocate Clerk of the petitioner

had received the judgment and decree and asked the petitioners, including

the fifth respondent to come over to his office. The petitioner went to the

office of the Advocate in the first week of December 2013. The petitioners

had discussion with their counsel. The fifth respondent told us that she

would file a CMA on her behalf and on behalf of petitioners also before this

Court and that she was prepared to accept contribution from all the

petitioners towards expenses and fees involved in filing such a CMA before

this Court. She received some of the papers, including the judgment and

decree from the counsel for the petitioner. The pleadings and some other

papers, which were kept by the Advocate, were not traceable during the said

point of time. The fifth respondent assured that she would come on some

other day and collect those papers from the counsel for the petitioner. She

told us that she knew some of the Advocates at Chennai and make suitable

arrangements for filing the appeal within two months thereafter. She has got

https://www.mhc.tn.gov.in/judis/ CMP No.13806 of 2017 in CMA SR No.90140 of 2016

the signatures of the petitioner in the High Court Vakalat for the purpose of

filing the above appeal.

9. Presuming that the reasons stated are true, this Court is of the

considered opinion that the judgment copies were admittedly received in the

year 2012. However, the petitioner has stated that the papers were not

traceable during the relevant point of time. Further, it is stated that the fifth

respondent agreed to file CMA on behalf of the petitioner also. Even such

statements are truthful, this Court is of the opinion that one party giving

some promise to other party or other party agreeing for such promise would

not be a ground to condone the delay of 1,453 days in filing the appeal.

10. A person can trust another litigant for a reasonable period of

time. For instance, if the period of limitation is 90 days, then they are

expected to wait for some more time and thereafter immediately institute the

appeal. Contrarily, one cannot come to Court after 5 years and say that with

the fond hope that the fifth respondent would file CMA on behalf of the

petitioner and therefore, had waited and instituted the appeal after the delay

https://www.mhc.tn.gov.in/judis/ CMP No.13806 of 2017 in CMA SR No.90140 of 2016

of 1,453 days. If at all such statements are true, they are not acceptable for

the purpose of condoning the huge delay of 1,453 days. This is exactly what

this Court has stated in the abovementioned paragraph that the

uncondonable delay cannot be condoned.

11. Learned counsel for the petitioner further contended that the

petitioner has got a good case on merits as the First Appellate Court has

erroneously arrived at a conclusion by remanding the matter back to the

Trial Court. However, this Court is of the considered opinion that

considering the merits and demerits of appeal in the condonation of delay

petition is not preferable. If the delay is meager, undoubtedly, this Court can

take a lenient view in the matter of condonation of delay. However, if the

delay is enormous, then no other option but to decline the grant of relief.

Contrarily, if the Courts have decided the merits and demerits of the

judgment and decree passed by the Appellate Court for the purpose of

condoning the delay, then the very purpose and the object of condonation of

delay stands defeated. Therefore, such an approach may be impracticable

and not preferable.

https://www.mhc.tn.gov.in/judis/ CMP No.13806 of 2017 in CMA SR No.90140 of 2016

12. Once the delay petition is filed, the same is to be dealt with

independently by scrutinising the reasons stated. For condoning such huge

delay, if the Courts are convinced with the reasons stated by the litigant for

the purpose of condoning the delay, then the Courts are expected to go into

the merits. Contrarily, condonation of delay cannot be allowed based on the

merits of the main appeal. Of course, it is not a trite law to follow. However,

in certain circumstances, Courts can take a lenient view if the reasons are

genuine. For instance, if the delay is about 3 months or six months, the

Courts can take a lenient view,but not otherwise.

13. The learned counsel for the petitioner states that the order of

remand is contrary to the settled principles of law. The order of remand by

the First Appellate Court is unwarranted. However, these facts are irrelevant

as far as condone delay petition filed before this Court is concerned or to

condone the delay of 1453 days. This Court, at this juncture, cannot

adjudicate the merits of the judgments as well as the findings made.

https://www.mhc.tn.gov.in/judis/ CMP No.13806 of 2017 in CMA SR No.90140 of 2016

14. However, the Appellate Court on remand, shall consider

whether remand is necessary or not. Order 41 Rule 23A stipulates remand of

cases. Rule 24 contemplates that the First Appellate Court has to decide the

issues finally, if the documents and evidences are available. Thus, certain

lapses by the trial Court or non-appreciation of evidence or documents may

not be a good ground for remanding the matter back to the trial Court as

such remand would cause longevity to litigations, further, would cause

inconvenience. Thus, the Courts are expected to remand the matter only

when it is absolutely required and it is not possible for the Appellate Court

to decide the issues finally or the suit was decided on preliminary issues.

The Trial Court is also expected to decide the issues uninfluenced by the

observations made by the Appellate Court after remand. Equally the Courts

are not expected to record unnecessary findings if a decision is taken to

remand the matter back to the trial Court, as such findings would affect or

influence the trial Court, while dealing with the matter independently.

https://www.mhc.tn.gov.in/judis/ CMP No.13806 of 2017 in CMA SR No.90140 of 2016

15. 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 1,453 days are neither candid nor

convincing and consequently, the Civil Miscellaneous Petition in

C.M.P.No.13806 of 2017 stands dismissed and consequently,

C.M.A.SR.No.90140 of 2016 is rejected at the SR Stage itself. However,

there shall be no order as to costs.

18-01-2021 Speaking Order/Non-Speaking Order.

Internet : Yes/No.

Index: Yes/No.

Svn/Kak

To

1.The I Additional District Judge, Coimbatore.

2.The II Additional Sub Judge, Coimbatore.

https://www.mhc.tn.gov.in/judis/ CMP No.13806 of 2017 in CMA SR No.90140 of 2016

S.M.SUBRAMANIAM, J.

Svn/Kak

CMP No.13806 of 2017 in CMA SR No.90140 of 2016

18-01-2021

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