Madras High Court
N.Ganesan vs Gunasekaran on 7 April, 2022
CMP.No.21799/2019 in SA.SR.No.80662/2019 & SA.SR.No.80662/2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
CMP.No.21799/2019 in SA.SR.No.80662/2019 & SA.SR.No.80662/2019
N.Ganesan .. Petitioner /
Appellant
Vs.
Krishnaveni (Died)
Dayanandan (Died)
Jawaharlal (Died)
1.Gunasekaran
2.Kisiyammal
3.Sekar
4.Kirupanandhan
5.Shakila
6.Satheeshkumar
7.Rajini
8.Ranjithkumar
9.Sanjeevkumar
10.Jayalakshmi
11.Vadhani
12.Nithilla
13.Aaskaar
14.Vikas .. Respondents
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CMP.No.21799/2019 in SA.SR.No.80662/2019 & SA.SR.No.80662/2019
Prayer in CMP.No.21799/2019:- Petition filed under Order 41 Rule 3 A
read with under Order 42 Rule 1 of C.P.C., to condone the delay of 5468
days in filing the above second appeal.
Prayer in SA.SR.No.80662/2019:- Second Appeal filed under Section 100
of the Civil Procedure Code against the judgment and decree passed in
AS.No.404/2003 on the file of the learned Principal Judge, City Civil
Court, Chennai dated 30.03.2004 confirming the decree and judgment
passed in OS.No.1494/1997 on the file of the VII Assistant City Civil
Court, Chennai.
For Petitioner /
Appellant : Mr.R.Varadaraj
For R1 : Mr.A.D.Janarthanan
ORDER/JUDGMENT
(1) This petition is filed to condone the delay of 5468 days in filing the
above Second Appeal.
(2) It is the case of the petitioner that the suit filed by the 2nd wife of the
petitioner's father for declaring the Settlement Deed executed by his
father in his favour as null and void and for consequential relief was
allowed and the appeal was also dismissed by the judgment and
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CMP.No.21799/2019 in SA.SR.No.80662/2019 & SA.SR.No.80662/2019
decree dated 30.03.2004. It is admitted that the second appeal was
filed by the defendant/appellant in the year 2019 with a delay of
5468 days in filing the second appeal.
(3) In the affidavit filed in support of the petition, the petitioner has not
given any acceptable reason for the long delay of nearly 14 years. It
is stated by the petitioner in the affidavit that his advocate had not
informed him that the First Appeal before the Lower Appellate Court
was dismissed. It is stated that he is a senior citizen ailing from
several complications and that he came to know about the dismissal
of the appeal only during the end of 2018 and he had engaged
another advocate to file his second appeal during the year 2019 and
the appeal was presented with the delay.
(4) The reasons stated in the affidavit cannot be accepted as the
petitioner has just put the blame on his advocate without any
verifiable material. First of all, it is seen that the suit was filed in the
year 1997 and it was decreed on 30.04.2003 in O.S.No.1494/1997
before the City Civil Court, Chennai. Thereafter, the appeal filed in
the year 2003, was dismissed by the judgment and decree dated
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CMP.No.21799/2019 in SA.SR.No.80662/2019 & SA.SR.No.80662/2019
30.03.2004 in A.S.No.404/2003 by the learned Principal Judge, City
Civil Court, Chennai. The second appeal was presented only in the
year 2019 with the delay of 5468 days [more than 14 years]. The only
reason stated is that the petitioner's counsel had not informed him
about the disposal. When the appeal was filed, the age of the
petitioner was around 50 years and it is impossible to believe that the
petitioner did not contact his counsel for more than 14 years to know
about the disposal of the suit. The suit for declaration of invalidity of
the Settlement Deed in favour of the petitioner was decreed by the
Trial Court and therefore there could have been several subsequent
transactions. The petitioner who claimed to have title to the property
under the Settlement Deed is not in possession of the property and
the respondents have obtained a decree for injunction.
(5) Learned counsel appearing for the respondents on instructions
further stated that in the suit property, the respondents have put up
construction. No counter affidavit is filed as no opportunity is given
to the respondents. This Court is of the view that it is unnecessary to
give further time to file counter as the petitioner has not given any
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CMP.No.21799/2019 in SA.SR.No.80662/2019 & SA.SR.No.80662/2019
acceptable reasons for the delay of 14 years. Since the petitioner has
not given any acceptable reasons and this Court has no discretion to
entertain this petition.
(6) Hence, this petition is dismissed. Consequently, the Second Appeal
is rejected at the SR Stage.
07.04.2022
cda
Internet : Yes
To
1.The Principal Judge, City Civil Court, Chennai.
2.The VII Assistant City Civil Court, Chennai.
3.The SAR, Main AE Section
High Court, Madras.
4.The Section Officer
VR Section, High Court
Chennai.
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CMP.No.21799/2019 in SA.SR.No.80662/2019 & SA.SR.No.80662/2019
S.S.SUNDAR, J.,
cda
CMP.No.21799/2019 in SA.SR.No.80662/2019
& SA.SR.No.80662/2019
07.04.2022
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