Madras High Court
Abbas Ali vs A.Peer Mohamed (V) Babu on 28 March, 2022
C.M.P.(MD) No.310 of 2020 in
S.A.(MD) SR No.726 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 28.03.2022
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.P.(MD) No.310 of 2020
in
S.A.(MD) SR No.726 of 2020
Abbas Ali ... Petitioner/Appellant
-vs-
1. A.Peer Mohamed (V) Babu
2. Manikandan
3. Joint Sub Registrar-2,
Periyakulam, Theni District. ... Respondents/Respondents
Prayer in C.M.P.(MD) No.310 of 2020:- Petition filed under Section 5 of
Limitation Act to condone the delay of 373 days in filing the second appeal.
Prayer in S.A.(MD) SR No.726 of 2020:- Appeal filed under Section 100 of
Civil Procedure Code to set aside the judgment and decree of the Sub Court,
Periyakulam, in A.S.No.21 of 2014 dated 13.09.2017 in reversing the
judgment and decree in O.S.No.129 of 2009 dated 28.08.2014 passed by the
District Munsif Court, Periyakulam.
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C.M.P.(MD) No.310 of 2020 in
S.A.(MD) SR No.726 of 2020
For Petitioner : Ms.Porkodi Karnan
for M/s.Polax Legal Solutions
For Respondents : No appearance
******
ORDER
The Civil Miscellaneous Petition is filed to condone the delay of
373 days in filing the second appeal.
2. The learned counsel appearing on behalf of the petitioner made
a submission that the judgment in A.S.No.21 of 2014 was delivered by the
first appellate court on 13.09.2017 and the petitioner/appellant applied for
the copy of the judgment on 14.09.2017. The copy of the judgment was
made ready on 28.09.2018. Therefore, the second appeal ought to have
been filed on or before 27.12.2018. However, it was filed with a delay of
373 days.
3. The petitioner/appellant states that he is aged about 70 years
and was suffering from hypertension and was advised to take complete rest.
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C.M.P.(MD) No.310 of 2020 in
S.A.(MD) SR No.726 of 2020
Thus, the petitioner was unable to meet his advocate to make arrangement
for filing the second appeal. He states that he was having continuous
headache, fatigue and confusion and not able to concentrate on anything.
Therefore, he could not able to find a suitable advocate in time to file the
second appeal. Thus, the delay is to be condoned.
4. Except the above reasons, the petitioner is unable to
substantiate any valid or reasonable ground for the purpose of condoning
the enormous delay of 373 days in filing the second appeal. The purpose of
law of limitation is to ensure that the litigants are vigilant and prudent
enough in pursuing their rights in accordance with law. A person, who is
not vigilant in pursuing his right, then such a person is not entitled for any
relief from the hands of the Courts. No doubt, the Courts are taking
consistent view in condoning the delay, if such delay is meagre. However,
enormous delay in filing the appeals cannot be condoned in a routine
manner. For instance, if the delay is one or two months, then the Courts are
always liberal in condoning the delay, understanding the practical
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C.M.P.(MD) No.310 of 2020 in
S.A.(MD) SR No.726 of 2020
difficulties of the litigant. However, if the delay goes beyond the reasonable
period, then the reasons must be specific, which all are to be acceptable to
the court of law.
5. By condoning the enormous delay, Courts are not expected to
dilute the law of limitation. The law of limitation has got a definite purpose
and object. If such object is defeated, then everybody will file appeal at
their wish without reference to the delay and the same will cause prejudice
to the rights of the other parties, who all are the decree holders. The Courts
are bound to take a balanced approach. The rights of the decree holders are
to be protected. Enormous delay in filing the appeal would cause prejudice
to the rights of the other parties. Thus, any appeal is to be filed within the
period of limitation and in the event of enormous delay in filing the appeal,
the Courts are expected to be cautious in condoning the delay and it cannot
be a mechanical affair.
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https://www.mhc.tn.gov.in/judis
C.M.P.(MD) No.310 of 2020 in
S.A.(MD) SR No.726 of 2020
6. In every such delay, the reasons must be stronger enough to
consider the same. Otherwise, the parties are not entitled to get such
enormous delay condoned and therefore, this Court is of the opinion that the
petitioner is not entitled for the relief.
7. Perusal of the affidavit filed in support of the civil
miscellaneous petition reveals that except by stating that the petitioner was
suffering from hypertension and advised to take rest, there is no other proof
to establish that the delay was occurred beyond his control. This being the
factum established, the petitioner has failed to establish any acceptable
ground for the purpose of condoning the delay.
8. The learned counsel for the petitioner made an attempt to argue
the case on merits by stating that the petitioner is having fair chances of
success in the appeal. The said ground cannot be a valid one for the
purpose of condoning the enormous delay. When the Courts are taking the
petitions to condone the delay, the reason put forth for condoning the delay
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C.M.P.(MD) No.310 of 2020 in
S.A.(MD) SR No.726 of 2020
is to be considered and the merits of the appeal may not stand always in the
way. However, in exceptional cases, if the appellant could able to
substantiate the grounds and the reasons, then alone the Courts will consider
all those issues, but not otherwise.
9. In the present case, the reasons stated by the petitioner for
condoning the delay of 373 days are flimsy and unacceptable and therefore,
the Civil Miscellaneous Petition is dismissed and the Second Appeal stands
rejected at the SR stage itself. No costs.
28.03.2022
Index:Yes
Speaking Order
abr
To
1.The Sub Judge, Periyakulam,
2.The District Munsif, Periyakulam.
3.The Joint Sub Registrar-2,
Periyakulam, Theni District.
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https://www.mhc.tn.gov.in/judis
C.M.P.(MD) No.310 of 2020 in
S.A.(MD) SR No.726 of 2020
S.M.SUBRAMANIAM, J.
abr
C.M.P.(MD) No.310 of 2020 in
S.A.(MD) SR No.726 of 2020
28.03.2022
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