Fathima Bi @ Zamruth Jan vs Raiz Begum
2022 Latest Caselaw 6922 Mad

Citation : 2022 Latest Caselaw 6922 Mad
Judgement Date : 4 April, 2022

Madras High Court

Fathima Bi @ Zamruth Jan vs Raiz Begum on 4 April, 2022

                                                                                 C.M.P. No.14431 of 2016
                                                                             in S.A. Sr. No.66932 of 2016



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 04.04.2022

                                                       CORAM:

                                   THE HONOURABLE MR. JUSTICE S.S.SUNDAR

                                                C.M.P. No.14431 of 2016
                                              in S.A. Sr. No.66932 of 2016


                    C.M.P. No.14431 of 2016
                    in S.A. Sr. No.66932 of 2016

                    Fathima Bi @ Zamruth Jan                                            .. Petitioner


                                                          Vs.
                    Raiz Begum                                                        .. Respondent


                            Civil Miscellaneous Petition is filed under Order 41 Rule 3A r/w.

                    Order 42 Rule 1 C.P.C., to condone the delay of 2508 days in filing the

                    second appeal.



                                      For Petitioner            :   Mr. I.Abrar Md Abdullah




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https://www.mhc.tn.gov.in/judis
                                                                                 C.M.P. No.14431 of 2016
                                                                             in S.A. Sr. No.66932 of 2016

                    S.A. Sr. No.66932 of 2016

                    Fathima Bi @ Zamruth Jan                                            .. Appellant

                                                          Vs.

                    Raiz Begum                                                        .. Respondent

                            Appeal suit is sought to be filed against the judgment and decree of

                    the learned Principal District Judge, Dharmapuri @ Krishnagiri dated

                    31.01.2007 made in A.S. No.15 of 2006 reversing the judgment and decre

                    of the learned Subordinate Judge, Dharmapuri dated 23.02.2006 made in

                    O.S. No.172 of 1998.


                                      For Appellant             :   Mr. I.Abrar Md. Abdullah


                                                      ORDER

This petition is filed to condone the delay of 2508 days in filing the

above second appeal.

2. The petitioner is the defendant in the suit in O.S. No.172 of 1998

on the file of Sub Court, Dharmapuri, which was filed by the respondent

https://www.mhc.tn.gov.in/judis C.M.P. No.14431 of 2016 in S.A. Sr. No.66932 of 2016

for specific performance on an agreement dated 16.06.1996. Though the

suit was dismissed by the trial Court earlier, the appeal filed by the

respondent in A.S. No.73 of 2003 was allowed and the matter was

remanded to the lower Court for fresh consideration. Even thereafter, the

trial Court dismissed the suit by a judgment and decree dated 23.02.2006

and the respondent filed an appeal in A.S. No.15 of 2006 before the

Principal District Court, Dharmapuri. However, after the second remand,

the trial Court decreed the suit as prayed for. As against the same, the

appeal filed by the appellant was dismissed. It is stated that the suit was

decreed by judgment and decree dated 31.01.2007. It is further stated by

the petitioner that an execution petition in R.E.P. No.17 of 2010 is also

filed to get the sale deed executed through Court. However, the above

appeal has been preferred with an inordinate delay of 2508 days.

3. In the affidavit filed in support of the petition the petitioner has

stated the following reasons:

“ ...

6. I further submit that though the judgment and decree was passed on 31.01.2007, I had instructed my lower Court counsel to obtain copies of the entire set so that I could prefer an appeal before this Hon'ble

https://www.mhc.tn.gov.in/judis C.M.P. No.14431 of 2016 in S.A. Sr. No.66932 of 2016

Court. I further submit that despite several oral requests that were made, I was able to get the certified copies of all the records only during October 2013 and thereafter I had sent the entire records to my counsel at Chennai in order to file the appeal. However to my misfortune, the entire case bundle had got mixed up with other bundle and therefore the same could not be traced in time in order to file an appeal in this Hon'ble Court. Therefore there has occassioned a delay of 2508 days in filing the present appeal which is neither wanton nor wilful and if the same is no condoned I will be put to irreparable loss and hardship.”

4. Absolutely there is no proper reason stated in the affidavit

explaining the inordinate delay of more than seven years. The reason

stated by the petitioner that he could obtain certified copies of all records

only during October 2015 cannot be believed. It is admitted that the

respondent has filed an execution petition in the year 2010. Therefore, the

petitioner's submission that he has waited till 2015 for getting certified

copy of decree to file the appeal cannot be believed. This Court finds that

the reason stated by the petitioner for the delay has not been established by

producing any verifiable material.

5. Since no plausible or acceptable reason is given to condone the

delay of 2508 days in filing the second appeal, this Court is not inclined to

https://www.mhc.tn.gov.in/judis C.M.P. No.14431 of 2016 in S.A. Sr. No.66932 of 2016