Madras High Court
V.Duraisamy vs K.P.Kulandaisamy on 13 October, 2022
AS.SR.No.25637 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.10.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
AS.SR.No.25637 of 2020
and
CMP.No.6691 of 2020
V.Duraisamy ... Petitioner
Vs.
1.K.P.Kulandaisamy
2.V.Subramaniam
3.S.Jagannathan
4.S.Dhandapani ... Respondents
Prayer: First Appeal Petition is filed under Section 96 of CPC, against
the judgment and decree dated 22.08.2006 made in O.S.No.210 of 2004
on the file of the I Additional District Court, Erode.
1/6
https://www.mhc.tn.gov.in/judis
AS.SR.No.25637 of 2020
For Petitioner : Mr.M.Velmurugan
For Respondents : Mr.K.Karthikeyan for R3 & R4
R1 & R2 -Died
ORDER
CMP.No.6691 of 2020 is filed seeking to condone the delay
of 4708 days in filing the first appeal.
2. The petitioner herein filed a suit for partition and the suit
was dismissed on 22.08.2006. Challenging the dismissal of the suit, the
petitioner has filed this first appeal on 25.02.2020 with delay of 4708
days. In support of the petition to condone the delay of 4708 days, the
petitioner has filed an affidavit wherein, he has stated that subsequent to
the dismissal of the suit there was negotiation for settlement and the
petitioner was under bonafide impression that the matter will be settled
by the negotiation and consequently, he has not taken steps to file
immediately. Further, the petitioner's daughter got married in 2008 and
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AS.SR.No.25637 of 2020
her marital life encountered with problems and ultimately resulted in
decree for divorce passed in HMOP.No.56 of 2010 on 25.06.2017.
3. The petitioner has mentioned in his affidavit that, due to
the matrimonial dispute of his daughter, he underwent mental trauma and
was hospitalized on many occasions, due to which he was unable to file
the appeal on time.
4. The learned counsel for the petitioner by reiterating the
reasons given by the petitioner in the affidavit submitted that while
considering the petition to condone the delay under Section 5 of the
Limitation Act, the Court has to adopt a liberal approach.
5. The learned counsel for the petitioner also relied on the
judgment of this Court reported in (2005) 3 MLJ 357, wherein it was
stated that sometimes the delay of shortest range may be uncondonable
due to want of acceptable explanation, whereas in certain other cases,
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AS.SR.No.25637 of 2020
delay of a very long range can be condoned as the explanation therefor is
satisfactory.
6. This Court is not impressed by the explanation offered by
the petitioner for condoning the delay of 4708 days. Merely because, the
petitioner was involved in a negotiation for settlement, he cannot wait
for nearly 13 years and then file the appeal with delay petition. Further,
the reason given by the petitioner that in view of the matrimonial dispute
of his daughter, he was prevented from filing delay petition also cannot
be accepted. Even according to the petitioner, the matrimonial dispute
culminated in passing of decree for divorce in the year 2015. However,
this appeal was filed only in the year 2020. Absolutely, there is no
explanation for the five years period from 2015 to 2020.
7. The perusal of the certified copies of the judgment and
decree produced in the typed set of papers would suggest that the
petitioner herein applied for the certified copies of the judgment and
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AS.SR.No.25637 of 2020
decree and he got the same on 20.01.2007. From 20.01.2007 till the date
of filing of the appeal, what prevented the petitioner from filing the
appeal immediately after the date of receipt of the certified copies is not
at all explained sufficiently in the affidavit.
8. The petitioner has not shown any sufficient cause
explaining the delay of 4708 days. Therefore, not satisfied with the
reason given by the petitioner to condone the delay of 4708 days, this
Civil Miscellaneous Petition is dismissed and the appeal is rejected in
the SR stage itself. No costs.
13.10.2022
Index : Yes / No
Internet : Yes / No
dna
To
The I Additional District Court, Erode.
https://www.mhc.tn.gov.in/judis
AS.SR.No.25637 of 2020
S.SOUNTHAR , J.
dna
AS.SR.No.25637 of 2020
and
CMP.No.6691 of 2020
13.10.2022
https://www.mhc.tn.gov.in/judis
AS.SR.No.25637 of 2020
https://www.mhc.tn.gov.in/judis
