Madras High Court
G.Ragothaman vs A.Kannan on 2 August, 2023
C.M.P.No.10606 of 2023 and S.A.SR.No.23296 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.08.2023
CORAM
THE HON'BLE MR. JUSTICE A.D.JAGADISH CHANDIRA
C.M.P.No.10606 of 2023
and S.A.SR.No.23296 of 2023
Mangalam(Deceased)
1.G.Ragothaman
2.G.Bharathi
3.G.Ramamoorthi
4.G.Dhanalakshmi
5.G.Srinivasan
6.G.Murugan
7.G.Elumalai
8.G.Senthil Murugan
9.G.Thiruvengadam
10.G.Vadivelan
11.G.Thiruppavai ... Petitioners/Appellants
Vs.
A.Kannan ... Respondent/Respondent
PRAYER: Petition is filed under Section 5 of the Limitation Act, 1963 to
condone the delay of 5023 days in filing the second appeal.
For Petitioners : Mr.M.Prabhakar
For Respondent : Mr.R.Poornima
1/11
https://www.mhc.tn.gov.in/judis
C.M.P.No.10606 of 2023 and S.A.SR.No.23296 of 2023
ORDER
This petition has been filed seeking to condone the delay of 5023
days in filing the above second appeal.
2. It is the case of the petitioners that they are the legal heirs of
late Gopal. O.S.No.267 of 2003 has been filed by the petitioners/plaintiffs
and their mother before the Principal District Munsif Court, Thirukoilur
seeking for declaration and permanent injunction and that the trial Court
had decreed the suit in their favour on 29.06.2004. The respondent had
filed an Appeal Suit in A.S.No.123 of 2004 before the I Additional
Subordinate Court, Villupuram and the appellate Court, by judgment dated
27.11.2008 set aside the judgment of the trial Court. The further case of the
petitioners is that their mother late Mangalam, the first plaintiff was
pursuing the case and after her demise on 10.07.2022, the other petitioners 1
to 11 had applied for death certificate and legal heirship certificate of their
deceased mother and after receiving legal heirship certificate on 15.11.2022,
they had filed the second appeal on 20.02.2023 with the delay of 5023 days.
3. In the counter filed by the respondent, it is stated that the trial
Court had decreed the suit on 29.06.2004 and aggrieved by the same, the
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C.M.P.No.10606 of 2023 and S.A.SR.No.23296 of 2023
respondent has filed A.S.No.123 of 2004 on the file of I Additional Sub
Court, Villupuram and the first appellate Court reversed the judgment of the
trial Court by allowing the appeal on 27.11.2008. It is further contended
that the respondent filed caveat on 10.03.2009 and subsequently, filed
second caveat on 11.06.2009 before this Court and on 16.04.2012, he has
filed a petition for return of documents in R.A.No.21 of 2012 in which
notice was ordered on 28.08.2012 and the same was served on the
petitioners herein on 12.10.2012. Though vakalath was filed by one
Mr.V.Anbu, learned counsel and for filing counter, time was taken by the
petitioners from 23.11.2012 to 22.01.2013. As the petitioners herein failed
to file counter, order was passed on 22.01.2013 directing to return the
documents and on 24.01.2013 the respondent had received the original
documents. Thereafter, on 18.08.2021, the respondent executed a sale deed
in favour of his son viz., Senthil Muthu and he had put up construction in
that place. It is further alleged in the counter that the petitioners and the
respondent are neighbours and the petitioners have not objected for the
construction made by the respondent's son and with huge delay, the present
appeal has been filed. It is also stated that though the first plaintiff
Managalam was alive till 10.07.2022 and the judgment of the first appellate
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C.M.P.No.10606 of 2023 and S.A.SR.No.23296 of 2023
Court was on 27.11.2008, she did not prefer any second appeal during her
lifetime and no sufficient reason has been stated by the petitioners to
condone the huge delay of 5023 days.
4. Mr.M.Prabhakar, learned counsel for the petitioners would
submit that all along the petitioners' mother was following the case before
the trial court as well as first appellate Court and after her death only, the
petitioners came to know about the judgment of the first appellate Court and
thereby, the delay has occurred and he would seek for condoning the delay
on terms.
5. Ms.M.R.Poornima, learned counsel for the respondent would
submit that the petitioners were well aware of the judgment and decree and
that the first petitioner is the person, who had deposed as P.W.1 before the
trial Court on behalf of the plaintiffs and he only followed the case on
behalf of his mother and the petitioners cannot plead ignorance about the
judgment passed by the first appellate Court. She would further submit that
the respondent had filed a petition for return of documents in R.A.No.21 of
2012, in which, notice was ordered on 28.08.2012 and the same was served
on the petitioners herein on 12.10.2012 and they had engaged a counsel
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C.M.P.No.10606 of 2023 and S.A.SR.No.23296 of 2023
Mr.V.Anbu, who had taken time for filing counter, but he did not turn up
and an order was passed on 22.01.2013 and the respondent had received the
original documents on 24.01.2013. She would further contend that after
disposal of the first appeal, the respondent had filed caveat twice and notice
was served on the petitioners and despite the caveat notice, they did not
prefer appeal and the delay is very huge and deliberate and the affidavit is
not properly pleaded, convincing and acceptable and the explanation for
condoning the delay is also not satisfactory and he would seek for dismissal
of the petition. In support of her contention, the learned counsel for the
respondent would draw the attention of this Court to the judgments of the
Apex Court in H.Dohil Constructions Company Private Limited Vs.
Nahar Exports Limited and another (2015 (1) SCC 680) and
N.Balakrishnan Vs. Krishnamurthy (1998 (7) SCC 123).
6.Heard the learned counsel appearing on both sides and perused
the materials available on record.
7.This petition has been filed to condone the delay of 5023 days
in filing the second appeal. Though it is the case of the petitioners that all
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C.M.P.No.10606 of 2023 and S.A.SR.No.23296 of 2023
along the petitioners' mother was following the case before the trial court as
well as first appellate Court and after her death only, the petitioners came to
know about the judgment of the first appellate Court and thereby, the delay
has occurred, from the records, it is clear that the first petitioner is the
person, who had deposed as P.W.1 before the trial Court on behalf of the
plaintiffs and he had only followed the case on behalf of his mother and
therefore the petitioners cannot plead ignorance.
8. The respondent had filed a petition for return of
documents in R.A.No.21 of 2012, in which, notice was served on the
petitioners herein on 12.10.2012 and though they had engaged a counsel
Mr.V.Anbu, who took time for filing counter did not turn up and an order
directing return of documents was passed on merits on 22.01.2013. This
itself shows that the petitioners have not shown any interest in prosecuting
the matter.
9. On a perusal of the documents, it is clear that petitioners had
also applied for copies of documents on 06.07.2023 and the copy
application has been returned by the Court on 07.07.2023 with an
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C.M.P.No.10606 of 2023 and S.A.SR.No.23296 of 2023
endorsement that Part-II and Part-III records in O.S.No.267 of 2003 were
destroyed. From the above, it is clear that the petitioners have not assigned
any acceptable reason for the delay.
10. The Apex Court, in Baljeet Singh (Dead) through legal
representatives and others Vs. State of Uttar Pradesh and others ((2019) 15
Supreme Court Cases 33) while dealing with the similar matter, has held as
under.
“7. The matter requires examination from another aspect,
viz., laches and delay. It is a very recognised principle of
jurisprudence that a right not exercised for a long time is
non-existent. Even when there is no limitation period
prescribed by any statute relating to certain proceedings, in
such cases, courts have coined the doctrine of laches and
delay as well as doctrine of acquiescence and non-suited the
litigants who approached the court belatedly without any
justifiable explanation for bringing the action after
unreasonable delay. In those cases, where the period of
limitation is prescribed within which the action is to be
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C.M.P.No.10606 of 2023 and S.A.SR.No.23296 of 2023
brought before the court, if the action is not brought within
that prescribed period, the aggrieved party loses remedy and
cannot enforce his legal right after the period of limitation is
over, however, subject to the prayer for condonation of
delay and if there is a justifiable explanation for bringing the
action after the prescribed period of limitation is over and
sufficient cause is shown, the court may condone the delay.
Therefore, in a case where the period of limitation is
prescribed and the action is not brought within the period of
limitation and subsequently proceedings are initiated after
the period of limitation along with the prayer for
condonation of delay, in that case, the applicant has to make
out a sufficient cause and justify the cause for delay with a
proper explanation. It is not that in each and every case
despite the sufficient cause is not shown and the delay is not
properly explained, the court may condone the delay. To
make out a case for condonation of delay, the applicant has
to make out a sufficient cause/reason which prevented him
in initiating the proceedings within the period of limitation.
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C.M.P.No.10606 of 2023 and S.A.SR.No.23296 of 2023
Otherwise, he will be accused of gross negligence. If the
aggrieved party does not initiate the proceedings within the
period of limitation without any sufficient cause, he can be
denied the relief on the ground of unexplained laches and
delay and on the presumption that such person has waived
his right or acquiesced with the order. These principles are
based on the principles relatable to sound public policy that
if a person does not exercise his right for a long time then
such right is non-existent.”
11. Having considered the averments made in the affidavit
filed in support of the petition for condonation of delay, this Court is of the
view that the reasons assigned have not been properly explained and they
are not convincing and acceptable and the petitioner has not shown
sufficient cause for condoning such huge delay of 5023 days and the Civil
Miscellaneous Petition in CMP No.10606 of 2023 is dismissed.
12. Further, on going through the records, this Court is also
able to see that there are no substantial questions of law involved for
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C.M.P.No.10606 of 2023 and S.A.SR.No.23296 of 2023
admitting the second appeal also. Consequently, the second appeal filed in
S.A. SR. No.23296 of 2023 is also dismissed. No costs.
02.08.2023
raa
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C.M.P.No.10606 of 2023 and S.A.SR.No.23296 of 2023
A.D.JAGADISH CHANDIRA.,J.
C.M.P.No.10606 of 2023
and S.A.SR.No.23296 of 2023
02.08.2023
https://www.mhc.tn.gov.in/judis
