Madras High Court

Malliga vs Zc98 Pranthiyankarai Primary ... on 16 September, 2022

C.R.P.No.1242 of 2020

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 16.09.2022

CORAM

THE HONOURABLE MRS. JUSTICE R.HEMALATHA
C.R.P.No.1242 of 2020

1. Malliga
2. Sivasubramaniyan ...Petitioners
Vs.

ZC98 Pranthiyankarai Primary Agricultural
Co-operative Thrift and Credit Society,
Rep. by its Secretary
Vedharanyam
Nagapattinam District. ... Respondent

Prayer : Civil Revision Petition filed under Section 115 CPC against the
fair and decretal order dated 11.11.2019 in I.A. No.108 of 2018 in
unnumbered A.S. No. /2019 on the file of the Subordinate Judge,
Nagapattinam.

For Petitioners : Mr.S. Parthasarathy
For respondent : Mr. D. Vairamoorthy

ORDER

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The present civil revision petition is filed against the order dated

11.11.2019 in I.A. No.108 of 2018 in unnumbered A.S. No. /2019 on the

file of the Subordinate Judge, Nagapattinam.

2. The revision petitioners are the defendants in O.S. No.102 of

2012 on the file of the District Munsif cum Judicial Magistrate,

Vedaranyam. The respondent/plaintiff filed the suit for recovery of vacant

possession of the suit property and for costs. After full contest, the

learned District Munsif, Vedaranyam, decreed the suit vide her orders

dated 31.10.2014. Thereafter, the revision petitioners filed an appeal

along with a petition in I.A. No. 108/2016 before the Subordinate Judge,

Nagapattinam, seeking to condone the delay of 727 days in filing the

appeal. The respondent/plaintiff filed a counter. After full contest, the

learned Subordinate Judge, Nagapattinam, dismissed the application filed

in I.A. No.108/2016 vide his orders dated 11.11.2019. Aggrieved over the

same, the present revision petition is filed.

3. Heard Mr.S. Parthasarathy, learned counsel for the revision

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petitioners and Mr. D. Vairamoorthy, learned counsel for the respondent.

4. The learned counsel for the revision petitioner contended that

the 1st revision petitioner was suffering from Blood Pressure and was also

financially not sound. Therefore, he could not file the appeal on time

before the Subordinate Judge.

5. Per contra the learned counsel for the respondent contended

that the reasons stated by the petitioners to condone the delay of 727 days

cannot be accepted for the simple reason that the 1st petitioner appeared

before the trial court in E.P. No.27/2015 on 03.06.2015. It is also

contended by him that when the Court Amin went to the suit property for

taking possession of the same, the revision petitioners prevented the same

and also created ruckus on that date. According to him, they also filed an

application under Section 47 CPC and stalled the execution of the decree.

Therefore, the respondent / plaintiff prayed for the dismissal of the present

petition.

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6. The trial court dismissed the application in I.A. No.108/2016

mainly on the ground that the petitioners did not adduce any documentary

evidence to show that the 1st petitioner was suffering from Blood Pressure

and other ailments due to old age. It is further observed that if really the

petitioners are not financially sound for engaging a counsel on time, they

could have approached the District Legal Services Authority for engaging

a counsel and they did not avail the said opportunity. The learned

Subordinate Judge had also pointed out that when the revision petitioners

appeared before the Court after receiving summons in the Execution

Petition on 03.06.2015, they did not bother to file an appeal immediately

thereafter. Only after the lapse of 18 months, they have filed the appeal

along with a petition to condone the delay of 727 days.

7. The first appellate court,relied on the decisions of this Court

in Nancy Jeevadhas vs. A. Rajendhar and another reported in 2014 (3)

TNLJ 158 (Civil) and C.R. Boopathy and anr. vs. V.S.Singaravelu

reported in 2014 (3) TNLJ 239 (civil), observed that when the revision

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petitioners entered appearance in Execution Petition through an Advocate

by filing vakalat, the petition to condone the delay of 727 days delay in

filing the appeal cannot be sustained.

8. At the outset, it may be observed that the main contention of

the revision petitioners are two fold, namely, 1) the 1st petitioner had

Blood Pressure and 2) both the revision petitioners are not having

sufficient means to engage a counsel on time. However, the revision

petitioners in the Execution Proceedings entered appearance through

counsel on 03.06.2015 and they did not file an appeal immediately

thereafter.

9. In Sundar Gnanaolivu rep. by his power of attorney agent

Mr. Rukmini vs. Rajendran Gnanavolivu, rep. by its power of attorney

agent Veina Gnanavalivu) reported in 2003 1 LW 585, the Division

Bench of this Court held that when the averments in the affidavit are

untrue, lack bona fides, then the case falls within the exception to the Rule

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of Liberal approach and it does not deserve the liberal approach formula in

matters relating to condonation of delay. In this case, the Division Bench

of this Court followed the decision of the Honourable Supreme Court

reported in M.K.Prasaf vs. P. Arumugam (2001) 6 Supreme Court Cases

176. In Para Nos. 14-A and 15, the Division Bench of this Court held

thus:-

"14. .....If a litigant chooses to approach the Court long after the time prescribed under the relevant provisions of the law, he cannot say that no prejudice would be caused to the other side by the delay being condoned. The other side would have in all probability destroyed the records thinking that the records would not be relevant as there was no further proceeding in the matter. Hence, to view a matter of condonation of delay, with a presupposition that no prejudice will be caused by the condonation of delay to the respondent in that application will be fallacious. In our view, each has to be decided on the facts and circumstances of the case. Length of the delay is a relevant matter to be taken into account,

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while considering whether the delay should be condoned or not. It is not open to any litigant to fix his own period of limitation for instituting proceedings for which law has prescribed periods of limitation.

17. .....Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long time, it cannot be presumed to be non- deliberate delay, and in such circumstances of the case, he cannot be heard to plead that substantial justice deserved to be preferred as against technical considerations. WE are of the view that the question of limitation is not merely a technical consideration. Rules of limitation are based on principles of sound public policy and principles of equity. Is a litigant liable to have a Damocles' sword hanging over his head indefinitely for a period to be determined at the whims and fancies of the opponent.

15. On a conspectus reading of the above principles set out in the various judgments, it is well settled that a liberal approach should be extended while considering the application for condonation of delay.

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Sufficient caution has been exhibited to note that wherever there is lack of bona fides or attempt to hood-wink the Court by the party concerned who has come forward with an application for condonation of delay, no indulgence should be shown by condoning the delay applied for. It is also clear to the effect that it is not the number of days of delay that matters, but the attitude of the party which caused the delay. In other words when the Court finds that the party who failed to approach the Court within the time stipulated comes forward with an explanation for condoning the delay, the Court if satisfied that the delay occasioned not due to the deliberate conduct of the party, but due to any other reason, then by sufficiently compensating the prejudice caused to the other side monetarily, the condonation of delay can be favourably ordered."

10. The suit in O.S. No.102/2012 was filed for recovery of

possession of the suit property from the defendants. The main contention

of the respondent/plaintiff in the suit was that the revision petitioners had

unauthorisedly encroached upon the suit property. The trial court after

considering the oral and documentary evidence adduced on both sides had

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given a clear cut finding that the revision petitioners did not adduce any

documentary evidence to show that they are entitled to be in possession of

the suit property and on the other hand the plaintiff, ZC98 Pranthiyankarai

Primary Agricultural Co-opeerative Thrift and Credit Society, being a

lawful owner of the suit property is entitled to get vacant possession of the

suit property. In any event the revision petitioners did not file any appeal