E.Ellammal vs R.Kanniyappan
2023 Latest Caselaw 10833 Mad

Citation : 2023 Latest Caselaw 10833 Mad
Judgement Date : 21 August, 2023

Madras High Court

E.Ellammal vs R.Kanniyappan on 21 August, 2023

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED : 21.08.2023

                                                          CORAM

                      THE HON'BLE MR. JUSTICE A.D.JAGADISH CHANDIRA
                                    CMP. No.9063 of 2023
                                             in
                                   S.A.SR. No.9227 of 2023
                 Ekambaram (Died)
                 1.E.Ellammal
                 2.Shanthi, M.
                 3.E.Sekar
                 4.Suguna
                 5.E.Radhakrishnan
                 6.E.Shanmugam
                 7.E.Jayaraman                                                          ... Petitioners
                                                             Vs.
                 1.R.Kanniyappan
                 2.Perumal                                                           ... Respondents
                 Prayer : Miscellaneous Petition filed under Order 41 Rule 3(A) of C.P.C. r/w
                 Section 42, Rule 1 of C.P.C., pleased to condone the delay of 10,624 days in
                 filing the above second appeal.
                                  For Petitioners   :    Mr.A.Gowthaman
                                                         ORDER

This Miscellaneous Petition has been filed to condone the delay of

10,624 days in filing the Second Appeal.

2. The petitioners are the Legal Heirs of the unsuccessful plaintiff

https://www.mhc.tn.gov.in/judis who lost before the trial Court as well as in the appellate Court. One

Mr.Ekambaram, the husband of the first petitioner and the father of the

petitioners 2 to 7 had filed O.S. No.160 of 1988 before the VII Assistant City

Civil Court, Chennai, against his brothers Kanniyappan

and Perumal seeking his partition. The trial Court, by the judgment and

decree dated 28.02.1990 had dismissed the partition suit. Against which, the

said Ekamabaram has filed A.S. No.201 of 1992 on the file of the III

Additional City Civil Court, Chennai and the same was dismissed on

30.09.1993.

3. It is stated that the said Ekambaram purchased the suit schedule

property in his name and also in the name of the respondents for a valid

consideration in the year 1962. From the date of purchase, he was in

possession and enjoyment of the property. However, the respondents have got

the right of title by way of adverse possession over the suit property. In the

above said finding the trial Court dismissed the suit in OS.No.160 of 1988 for

partition. Aggrieved over the same, the said Ekambaram filed AS.No.201 of

1992 on the file of III Additional City Civil Court, Chennai. The lower

appellate Court without re-appreciating the oral and documentary evidence

simply confirmed the judgment and decree of the trial Court. Aggrieved over

https://www.mhc.tn.gov.in/judis the same, the present second appeal has been filed.

4. It is the case of the petitioners that the deceased Ekambaram died

on 08.01.2011. During his life time, he has not disclosed anything about the

pendency of the suit. Since the appellants are not parties to the suit and

appeal, they were under the impression that their share will be given to them.

Immediately after knowing about the result of the suit as well as the appeal,

they filed the present appeal with the condone delay petition.

5. Mr.A.Gowthaman, learned counsel appearing for the petitioners

would submit that the first petitioner's husband and 2-7 petitioners' father had

purchased the property whereas, the Courts below have not taken into

consideration of the fact that the said Ekambaram had purchased the property.

He would further submit that the said Ekambaram died on 08.01.2011 and

after that only they filed the present Appeal alongwith the petition for

condoning the delay of 10,624 days.

6. Heard the learned Counsel for the petitioners and perused the

entire materials available on record.

7. The first petitioner's husband and other petitioners' father has

preferred first appeal in A.S. No.201 of 1992 on the file of the III Additional

City Civil Court, Chennai and the same was dismissed on 30.09.1993. On

https://www.mhc.tn.gov.in/judis 08.01.2011, the first petitioner's husband died. Though the first petitioner's

husband was alive till 2011, he did not intend to file any Second Appeal

against the judgment and decree made in the First Appeal. Further, even after

his death, the present appeal has been filed only in the year 2023 with a delay

of 10,624 days. In this context, it is useful to rely upon the judgment of the

Apex Court, in Majji Sannemma alias Sanyasiroa vs. Reddy Sridevi and

others reported in (2021) SCC Online SC 1260, wherein it has held as

under :

"20. In the case of Basawaraj (supra), it is observed and held by this Court that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case. It is further observed that the expression "sufficient cause" cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party. It is further observed that even though limitation may harshly affect rights of a party but it has to be applied with all its rigour when prescribed by statute. It is further observed that in case a party has acted with negligence, lack of bona fides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. It is observed that each application for condonation of delay has to be decided within the framework laid down by this Court. It is further observed that if courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to legislature.

21. In the case of Pundlik Jalam Patil (supra), it is observed by this Court that the court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The Courts help those who are vigilant and "do not slumber over their rights".

22. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and considering the averments in the application for condonation of delay, we are of the opinion that as such no explanation much less a sufficient or a

https://www.mhc.tn.gov.in/judis satisfactory explanation had been offered by respondent Nos. 1 and 2 herein - appellants before the High Court for condonation of huge delay of 1011 days in preferring the Second Appeal. The High Court is not at all justified in exercising its discretion to condone such a huge delay. The High Court has not exercised the discretion judiciously. The reasoning given by the High Court while condoning huge delay of 1011 days is not germane. Therefore, the High Court has erred in condoning the huge delay of 1011 days in preferring the appeal by respondent Nos. 1 and 2 herein original defendants. Impugned order passed by the High Court is - unsustainable both, on law as well as on facts."

8. Having considered the averments made in the affidavit filed in

support of the petition for condonation of delay and the judgment referred to

supra, this Court is of the view that the reasons assigned by the petitioners for

condoning the delay are not convincing and acceptable one and the petitioner

has not shown sufficient cause for condoning such huge delay of 10,624 days

and hence, the Civil Miscellaneous Petition is dismissed.

9. Further, on going through the records, this Court is also able to

see that there is no substantial question of law involved for admitting the

second appeal also. Consequently, the second appeal is also dismissed in the

SR stage itself. No costs.

21.08.2023

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