Madras High Court
Umapathi vs Sivaraj on 7 April, 2022
CMP.No.12973/2019 in SA.SR.No.70338/2019 & SA.SR.No.70338/2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
CMP.No.12973/2019 in SA.SR.No.70338/2019 & SA.SR.No.70338/2019
Umapathi .. Petitioner /
Appellant
Vs.
1.Sivaraj
2.Murugammal
3.Devarajan
4.Kannammal
5.Palaniammal
6.Krishnaveni
7.Jothilakshmi
8.Theerthamalai
9.Sakthivel
10.Ranganathan .. Respondents
Prayer in CMP.No.12793/2019:- Petition filed under Order 41 Rule 3A
read with under Order 42 Rule 1 of C.P.C., to condone the delay of 920
days in preferring the above second appeal against the judgment and
decree dated 08.02.2016 made in A.S.No.43/2013 on the file of the learned
Subordinate Judge, Dharmapuri against the judgment and decree dated
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CMP.No.12973/2019 in SA.SR.No.70338/2019 & SA.SR.No.70338/2019
09.07.2013 made in O.S.No.55/2011 on the file of the District Munsif
Court, Dharmapuri.
Prayer in SA.SR.No.70338/2019:- Second Appeal filed under Section 100
of the Civil Procedure Code against the judgment and decree dated
08.02.2016 made in A.S.No.43/2013 on the file of the learned Subordinate
Judge, Dharmapuri against the judgment and decree dated 09.07.2013
made in O.S.No.55/2011 on the file of the District Munsif Court, Palacode.
For Petitioner /
Appellant : Mr.V.Sakkarapani
For R1 and R2 : Mr.Arun Anbumani
ORDER/JUDGMENT
(1) This petition is filed to condone the delay of 920 days in preferring
the above Second Appeal.
(2) Though the delay is inordinate, this Court is of the view that the
petitioner has not taken care to give proper explanation for the delay.
It is admitted by the petitioner the judgment and decree dated in
A.S.No.43/2013 was dated 08.02.2016 and the copy application was
also filed on 09.02.2016, the next day.
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CMP.No.12973/2019 in SA.SR.No.70338/2019 & SA.SR.No.70338/2019
(3) Though it is admitted that the copies of judgment and decree were
made ready on 06.09.2016 and delivered on 03.11.2016 to the Lower
Court counsel, it is stated that the learned counsel appearing for the
petitioner before the Lower Court kept the order copy without
intimating the petitioner. However, the petitioner admitted that he
contacted his counsel in the month of February 2017. At that time,
the counsel informed about the misplacement of the papers in the
office due to re-arragement in the Advocate's office. It is further
admitted that in the month of May 2017, the learned counsel
appearing for the petitioner informed him to come and collect the
order copy along with the bundle in the office. However, the
petitioner did not meet his counsel and he had stated that he did not
know about the further proceedings. Thereafter, in the month of
January 2018 the petitioner states that he met his counsel and came
to know that the second appeal has to be filed.
(4) From the affidavit filed in support of the petition, the petitioner has
not offered any explanation for the delay from May 2017 till January
2018 as he had admitted that he collected the certified copy of the
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CMP.No.12973/2019 in SA.SR.No.70338/2019 & SA.SR.No.70338/2019
judgment and decree only in January 2018, even though the learned
counsel had informed him about the availability of the certified
copies in May 2017.
(5) The delay is nearly more than 2 ½ years in filing the appeal. This
court is unable to find any justification for the inordinate delay. Even
in the affidavit the petitioner has not given proper reasons for the
delay. This Court has no discretion to condone the delay after finding
that there is no explanation offered for the delay. Though the Court is
expected to show some leniency and indulgence, leniency cannot be
shown in favour of the person who have failed to give any reason for
the considerable period of delay.
(6) Hence, this petition is dismissed. Consequently, the Second Appeal
is rejected at the SR Stage.
07.04.2022
cda
Internet : Yes
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CMP.No.12973/2019 in SA.SR.No.70338/2019 & SA.SR.No.70338/2019
To
1.The Subordinate Judge, Dharmapuri.
2.The District Munsif Court, Palacode.
3.The SAR, Main AE Section
High Court, Madras.
4.The Section Officer
VR Section, High Court
Chennai.
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CMP.No.12973/2019 in SA.SR.No.70338/2019 & SA.SR.No.70338/2019
S.S.SUNDAR, J.,
cda
CMP.No.12973/2019 in SA.SR.No.70338/2019
& SA.SR.No.70338/2019
07.04.2022
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