Madras High Court
Krishnamoorthy vs Gowri on 21 April, 2022
CMP.No.1739/2020 in SA.SR.No.69539/2015 &
SA.SR.No.69539/2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
CMP.No.1739/2020 in SA.SR.No.69539/2015
&
SA.SR.No.69539/2015
CMP.No.1739/2020 & SA.SR.No.69539/2015:-
Krishnamoorthy .. Petitioner /
Appellant
Vs.
1.Gowri
2.Yasodha
3.Devi
4.Nanjammal
5.R.Prabhakaran
6.T.C.Subramanian
7.P.C.Ramasamy
8.A.Karppasamy
9.Sulochana
10.Sivakumar .. Respondents
/ Respondents
Prayer in CMP.No.1739/2020:- Miscellaneous Petition filed under
Order 4 Rule 9[4] of A.S.Rules to condone the delay of 1217 days in
representation of the papers in the above Second Appeal
SR.No.69539/2015.
https://www.mhc.tn.gov.in/judis 1
CMP.No.1739/2020 in SA.SR.No.69539/2015 &
SA.SR.No.69539/2015
Prayer in SA.SR.No.69539/2015:- Second Appeal preferred under 100 of
CPC against the judgment and decree dated 23.12.2014 made in
AS.No.5/2014 on the file of the Court of the Subordinate Judge,
Perundurai, Erode District, confirming the judgment and decree dated
27.11.2013 made in OS.No.244/2007 on the file of the Court of the learned
District Munsif and Judicial Magistrate, Perundurai, Erode District.
For Petitioner
/ Appellant : Mr. S.Jayaseelan for
Mr.T.Dhanasekaran
For RR 6 to 8 : Ms.R.Vigneshwari for
Mr.M.Guruprasad
ORDER
(1) The present Civil Miscellaneous Petition is filed to condone the
delay of 1217 days in representing the papers in the Second Appeal
in SA.SR.No.69539/2015.
(2) The petitioner herein filed the suit in OS.No.344/1997 on the file
of the learned Principal Subordinate Judge, Erode, for specific
performance of an Agreement of Sale dated 30.10.1996 and for
consequential reliefs.
CMP.No.1739/2020 in SA.SR.No.69539/2015 &
SA.SR.No.69539/2015
(3) The Trial Court refused to grant the relief of specific performance;
but directed the defendants/respondents herein to pay the amount
of Rs.82,000/- which was received as advance from the petitioner.
It is to be noted that the petitioner himself has prayed for an
alternate relief for return of the advance amount.
(4) Though the petitioner has preferred an appeal in As.No.5/2014 on
the file of the Sub Court, Perundurai, the Lower Appellate Court
also dismissed the appeal on 23.12.2014. Thereafter, the Second
Appeal was filed on 19.08.2015. It appears that the Registry
returned the papers for certain compliance on 27.08.2015. It is
admitted that the Advocate clerk had taken the returned papers
from the Registry. The petitioner stated that he contacted his
counsel only in the first week of January 2020 and enquired about
the stage of the Second Appeal. It is further submitted that it was
only at that time, the petitioner's advocate found that the returned
papers got mixed up with the other bundles and that, after diligent
search, the learned counsel traced the papers and represented the
same with the delay of more than two years.
CMP.No.1739/2020 in SA.SR.No.69539/2015 &
SA.SR.No.69539/2015
(5) This Court is unable to agree with the reasons stated in the affidavit
filed in support of this miscellaneous petition. Though the delay in
representation can be considered by giving an opportunity to
contest the matter on merit, this Court is not inclined to entertain
this petition for two reasons.
(6) Firstly, the delay is not properly explained and it has now become a
practice of the advocates to explain casually the delay in
representation by citing reason that the returned papers got mixed
up with the other bundles. The petitioner herein in his affidavit has
stated that the returned papers were taken by the Advocate Clerk
even on 27.08.2015. The petitioner also states that he contacted his
advocate only in the first week of January 2020. This shows the
inaction on the part of the petitioner.
(7) The delay in representation is more than 3 years and it is likely to
cause serious prejudice to the respondents, who are the defendants
in the suit for specific performance.
(8) In the absence of any proper explanation in the affidavit filed in
support of this petition, this Court is unable to exercise its
CMP.No.1739/2020 in SA.SR.No.69539/2015 &
SA.SR.No.69539/2015
discretion in favour of the petitioner herein. Hence, this Court is of
the view that this petition is liable to be dismissed.
(9) Accordingly, CMP.No.1739/2020 is dismissed and the Second
Appeal in SA.SR.No.69539/2015 stands rejected.
21.04.2022
AP
Internet : Yes
To
1.The Subordinate Judge
Perundurai., Erode District.
2.The District Munsif-cum-Judicial Magistrate,
Perundurai, Erode District.
3.The Section Officer
VR Section, High Court
Chennai.
CMP.No.1739/2020 in SA.SR.No.69539/2015 &
SA.SR.No.69539/2015
S.S.SUNDAR, J.,
AP
CMP.No.1739/2020 in
SA.SR.No.69539/2015 & SA.SR.No.
69539/2015
21.04.2022
https://www.mhc.tn.gov.in/judis 6
