Madras High Court
Pannerselvam vs Karupayee on 29 March, 2022
C.M.P(MD)No.1617 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:29.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.P(MD)No.1617 of 2022
in
S.A.(MD)No.SR8946 of 2022
Pannerselvam :Petitioner/Appellant
Vs.
Karupayee : Respondent/Respondent
PRAYER in C.M.P(MD)No.1617 of 2022: Civil Miscellaneous Petition
filed under Order 41 Rule 3A r/w Section 151 of C.P.C., to condone the
delay of 973 days in preferring the second appeal against the judgment and
decree passed by the Court of the Subordinate Judge, Srivilliputhur in
A.S.No.47 of 2010 on 17.04.2017 in confirming the judgment and decree
passed by the Court of the Principal District Munsif, Srivilliputtur in
O.S.No.566 of 2005 on 20.10.2008.
PRAYER in S.A.(MD)No.SR8946 of 2022: Second Appeal filed Section
100 of C.P.C., against the judgment and decree passed by the Court of the
Subordinate Judge, Srivilliputtur in A.S.No.47 of 2010 on 17.04.2017,
1/2
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C.M.P(MD)No.1617 of 2022
confirming the judgment and decree passed by the Court of the Principal
District Munsif, Srivilliputtur, in O.S.No.566 of 2005 on 20.01.2008.
For Petitioner : Mr.M.Jothi Basu
For Respondent : No appearance
ORDER
This Civil Miscellaneous Petition is filed to condone the delay of
973 days in filing the second appeal against the judgment and decree dated
17.04.2017 made in A.S.No.47 of 2010 on the file of the Subordinate Judge,
Srivilliputtur, confirming the judgment and decree dated 20.10.2008 made
in O.S.No.566 of 2005 on the file of the Principal District Munsif,
Srivilliputtur.
2.The reason stated in the accompanying affidavit filed in support
of the miscellaneous petition reveals that the petitioner is suffering from
hypertension, diabetic etc., and therefore, he could not able to file an appeal.
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C.M.P(MD)No.1617 of 2022
3.The learned counsel for the petitioner states that the petitioner is
a senior citizen.
4.These reasons are flimsy. The petitioner has not filed any
supporting document to establish such serious ailments. Mere statement that
the petitioner is suffering from hypertension and diabetic, is insufficient to
form an opinion that the delay is otherwise genuine.
5.Law of limitation is to be followed in all circumstances.
Condonation of delay is an exception. Exception sought to be exercised
exceptionally, only when reasons are adequate enough to condone such
enormous delay. The Courts cannot condone the huge delay in a routine
manner. In the event of condoning such huge delay, the rights of the decree
holder is prejudiced. The rights of the parties are to be equally protected by
the Courts. The aggrieved persons are expected to file an appeal within a
reasonable period of time. Meagre amount of delay may be condoned by the
Courts by adopting a liberal approach. However, enormous delay cannot be
condoned in a routine manner, unless the reasons furnished are candid and
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C.M.P(MD)No.1617 of 2022
convincing. By condoning enormous delay, the Court cannot dilute the law
of limitation in the event of such routine condonation of delay, the purpose
and object of law of limitation is not only diluted, it will result in causing of
prejudice to the other parties to the litigations. Therefore, all mitigating
factors are to be considered, while condoning the delay in filing the appeals.
6.Uncondonable delay cannot be condoned in a routine manner.
Law of limitation is substantive. Litigations / appeals are expected to be
filed within the period of limitation as contemplated under the Statutes.
Rule is to follow limitation. Condonation of delay is an exception.
Exceptions are to be exercised discreetly, if the reasons furnished are
genuine and acceptable. The Courts are vested with the power of discretion
to condone the delay, that does not mean that enormous delay in instituting
the suit or appeal is to be condoned mechanically. Undoubtedly, if the
reasons are candid and convincing, then the Courts are empowered to
exercise its power of discretion for the purpose of condoning the delay.
Power of discretion is a double-edged weapon. Thus, discretionary powers
are to be exercised cautiously and uniformly so as to avoid any prejudice to
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C.M.P(MD)No.1617 of 2022
either of the parties. Exercise of power of discretion if made excessively,
would defeat the purpose and object of the law of limitation. The Courts are
expected not to travel beyond the permissible extent, so as to condone the
enormous delay in a routine or mechanical manner. Power of discretion is to
be exercised to mitigate the injustice, if any occurred to the litigants.
7. A fine distinction is to be drawn in respect of 'acceptability' and
'unacceptability', as far as the condonation of delay is concerned. The
reasons and its genuinity are important for condoning the delay. It became
unnecessary that the Courts have to consider the precedents and condone
the delay thereafter or reject the same. There are judgments far and against,
but predominantly the facts, circumstances and the genunity of the reasons
of each case plays a pivotal role in considering the relief of condonation of
delay.
8. Question may arise the purpose and object of the law of limitation
as refusal of condonation of delay sometime causes denial of rights to the
litigants. However, there is a definite purpose for prescription of period of
limitation for institution of litigations/appeals. Different time limits are
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C.M.P(MD)No.1617 of 2022
prescribed for different kinds of litigations. However, there is a strong
reason for such prescription of limitation in various statutes. The litigants
are always expected to be vigilant over their rights and liabilities, duties and
responsibilities. If any citizen of our great nation is allowed to exercise his
right at his whims and fancies without reference to the law of limitation,
circumstances may arise that the rights of other fellow citizens are
prejudiced or infringed. Rights cannot be exercised in an unguided manner.
All rights including fundamental rights under the Constitution of India is
qualified and subject to various restrictions under other laws in-force. Thus,
the rights of citizen and corresponding duty towards the other fellow citizen
are to be balanced in such a manner without causing any prejudice, which
resulted in prescription of law of limitation. Exercise of right by a citizen
cannot infringe the right of other fellow citizen. Rights and duties are
corresponding and therefore, the law requires a limitation for institution of
litigations/appeals.
9. Any citizen, who slept over his right, cannot wake up one fine
morning and knock the doors of the Court for re-dressal of his grievances.
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C.M.P(MD)No.1617 of 2022
The person, who slept over his right, has to necessary loose his right on
account of efflux of time which caused expiry of the cause. In the event of
institution of appeal or litigation after a prolonged period, the right of
defence will also be affected and further it will lead to unnecessary
harassment for prolonged period. All these mitigating factors are to be
considered while condoning the huge delay in instituting the
litigations/appeals. Thus, the law of limitation has got a definite reasoning
and logic. Various time limitations prescribed under many statutes are
adopting the principles of “Doctrine of Reasonableness”.
10. The principles of reasonableness would be adopted with reference
to the nature of litigations to be instituted. Various time limits are
prescribed for Civil litigations, Appeals and other varieties of litigations,
considering various factors and by applying the Doctrine of reasonableness.
Thus, the law of limitation became substantive and to be followed
scrupulously in all circumstances and on exceptional cases, the delay is to
be condoned, if the reasons are genuine and acceptable.
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C.M.P(MD)No.1617 of 2022
11. Exceptions can never be adopted as a rule. Exceptions are to be
exercised exceptionally and the power of discretion is to be exercised
discreetly, so as to mitigate the injustice if any caused. Condoning long
delay in a routine or mechanical manner by the Courts cannot be considered
as a good practice. It would result to an injustice in respect of the other
parties to the litigation.
12. Another point to be considered is that whenever the condone
delay petitions are taken into consideration, there is a frequent
representation from the parties that the delay is to be condoned by imposing
heavy costs or otherwise. This Court is of the humble opinion that by
imposing heavy costs, long delay cannot be condoned. In the event of
condoning enormous delay by imposing costs, undoubtedly, the legal
principles are not only compromised, but 'justice' is not done to the parties.
The Courts are not supposed to compromise the legal principles under the
guise of imposing heavy costs. Costs are imposed on certain exceptional
circumstances, when the Courts form an opinion that lapses are minor and
on account of such minor lapses, the parties should not suffer or their rights
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C.M.P(MD)No.1617 of 2022
cannot be denied. However, costs cannot be in terms with reference to the
number of days of delay. It is not an arithmetic principle, where long delay
is to be condoned with heavy costs and meagre delay is to be condoned with
meagre costs. Such a principle is opposed to public policy and therefore,
this Court is not prepared to accept such concept of imposing heavy costs
for condoning enormous delay by violating the Law of Limitation, which is
substantive and also the legal principles to be followed.
13. Once the delay petition is filed, it is to be dealt with
independently by considering the reasons furnished by the petitioner. If the
reasons are candid and convincing, then the petitions are to be considered.
However, condonation of delay cannot be allowed merely based on the
merits in the main appeal. Of course, it is not a trite law to follow. However,
in certain circumstances, the Courts can take a lenient view if the reasons
are genuine. If the delay is about three months or upto five or six months,
the Courts may take a lenient view, but not in respect of longer delay.
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C.M.P(MD)No.1617 of 2022
14.This being the factum, the petitioner has not sufficiently
explained the huge delay of 973 days. The reasons stated are not sufficient
enough to condone such huge delay. Thus, this Civil Miscellaneous Petition
stands dismissed. No costs. Consequently, the second appeal is also rejected
at SR stage itself.
29.03.2022
Index:Yes/No
Internet:Yes/No
Ns
To
1.The Subordinate Judge,
Srivilliputtur.
2.The Principal District Munsif,
Srivilliputtur.
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C.M.P(MD)No.1617 of 2022
S.M.SUBRAMANIAM, J
Ns
C.M.P(MD)No.1617 of 2022
in
S.A.(MD)No.SR8946 of 2022
29.03.2022
https://www.mhc.tn.gov.in/judis
