Madras High Court
P.S.Rasheed vs Sulthana on 11 December, 2023
Author: P.T. Asha
Bench: P.T. Asha
S.A.SR.No.47467 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.12.2023
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.SR.No.47467 of 2021
and
C.M.P.No.21126 of 2022
1. P.S.Rasheed
2. Waheeda
3. P.S.Rahman ...
Appellants
Vs.
1. Sulthana
2. Thaseena
P.S.Ravoof(deceased)
3. P.S.Raheem
4. P.S.Noor
5. P.S.Mubarak ... Respondents
PRAYER in C.M.P.No.21126 of 2022: Civil Miscellaneous Petition
filed under Section 5 of the Limitation Act to condone the delay of
1,922 days in preferring the above S.R.No.47467 of 2021 in
A.S.No.20 of 2012 on the file of the Court of I Additional District and
Sessions Judge, Vellore, confirming the judgment and decree dated
27.11.2009 made in O.S.No.60 of 2005 by the learned Subordinate
Judge, Gudiyatham.
1/11
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S.A.SR.No.47467 of 2021
PRAYER in S.A.SR.No.47467 of 2021: Second Appeal filed under
Section 100 of C.P.C. to set aside the judgment and decree dated
26.10.2015 made in A.S.No.20 of 2012 by the learned I Additional
District and Sessions Judge, Vellore, confirming the judgment and
decree dated 27.11.2009 made in O.S.No.60 of 2005 by the learned
Subordinate Judge, Gudiyatham.
For appellants : Mr.N.Saravanan
For respondents
For R1 and R2 : Mr.V.Rekha
for Mr.D.Rajagopal
For R3 to R5 : No appearance
JUDGMENT
The above application is filed for condonation of delay of 1,922
days in filing the above second appeal.
FACTS OF THE CASE:
2. The reasons that have been given for the delay are as
follows:
(A) The petition for accepting the cause title has to be filed;
(B) Their counsel, whom his brother viz., P.S.Raheem had
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engaged, had returned the brief to the third petitioner viz.,
P.S.Rahman.
(C) The petitioners' clerk who was addicted to alcohol had
forgotten to file the second appeal and therefore, his family members
had taken him to rehabilitation centre and hence, there was a delay in
filing the above second appeal.
2.1. The respondents have filed a counter inter alia contending
that there are no merits in the affidavit filed in support of the condone
delay petition. That apart, the petitioners/appellants have no ground to
plead in the second appeal itself and the second appeal does not
deserve to be admitted by this Court as it does not involve any
question of law.
2.2. Before considering the application for the condonation of
delay, it would be worthwhile to sift through the facts leading to the
institution of the suit which is the subject matter of the second appeal.
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2.3. The plaintiffs who have been arrayed as respondents 1 and
2 had filed a suit for specific performance and permanent injunction
restraining the defendants from interfering with their possession and
enjoyment of the suit property.
2.4. It is the case of the plaintiffs that the property belonged to
their mother Hib Junnisabi. The said Hib Junnisabi is the mother of
the plaintiffs and the defendants 2 to 7. The first defendant is her
husband. She had entered into an agreement of sale on 21.10.2004
agreeing to sell the suit property to the plaintiffs for a sale
consideration of Rs.2,40,000/- and received Rs.2,00,000/- as an
advance and agreed to receive the balance sale consideration of
Rs.40,000/- on or before 20.01.2006. Meanwhile, Hib Junnisabi had
passed away. The said Hib Junnisabi had handed over the possession
of the suit schedule property to the plaintiffs.
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2.5. When she had entered into the agreement, Hib Junnisabi
had represented to the plaintiffs that she had borrowed a loan from
Gudiyattam Co-operative Urban Bank Limited, Pernambut Branch by
depositing the title deeds of the schedule property. She had also
informed the plaintiffs that she would clear the said loan and get back
the documents and after getting back the documents, she would
execute the sale deed in their favour in respect of the suit schedule
property. Hib Junnisabi died on 06.02.2005 leaving behind the
plaintiffs and the defendants 2 to 7 as her legal heirs.
2.6. The plaintiffs would submit that they have paid
Rs.14,994/- to the Co-operative Bank, Pernambut Branch and that
they are ready and willing to pay the balance sale consideration
amount of Rs.25,006/-. The plaintiffs would submit that they had
requested the defendants to receive the money and demanded the
defendants to execute the sale deed. However, the defendants have not
come forward to do so. Then, the plaintiffs had issued a legal notice
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dated 03.09.2005 to the defendants 1 to 7. However, they had not
come forward with any reply and therefore, the plaintiffs had filed this
suit for specific performance and injunction against the defendants.
2.7. The first defendant had filed a written statement inter alia
admitting the averments made in the plaint and contended that the
sale agreement was executed by his wife and he attested the same.
The first defendant had agreed to execute the sale deed.
2.8. The second defendant had filed a written statement which
was adopted by the defendants 3 to 6, wherein, they had denied the
agreement of sale and contended that the signature is not that of Hib
Junnisabi. They had also contended that the plaintiffs did not have the
wherewithal to make the payment of a sum of Rs.2,00,000/-. The
second plaintiff who had left her husband was living in the suit
property and continued to do so, after the death of her mother.
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Therefore, they sought for the dismissal of the suit.
TRIAL COURT:
3. The learned Judge, on perusing the papers available on
record and hearing the learned counsel on either side, had decreed the
suit stating that the sale agreement was not a fabricated one, as the
plaintiffs have not only proved the execution but also payment of sum
of Rs.2,00,000/-.
4. Further, the first defendant had executed the agreement as
an attesting witness and had also filed the written statement admitting
to the same and contended that the plaintiffs are entitled to the
specific performance of the agreement of sale. Ultimately, the learned
Judge had decreed the suit.
LOWER APPELLATE COURT:
5. Challenging the same, the defendants 2,3 and 5 in the
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Trial Court had filed an appeal in A.S.No.20 of 2022. The lower
Appellate Court had also concurred with the judgment and decree of
the Trial Court.
6. It is against this judgment and decree, the defendants 2, 3
and 5 are before this Court.
7. Heard the learned counsel appearing on either side and
perused the materials available on record.
DISCUSSION:
8. The only defence taken by the defendants is that the
agreement of sale is rank forgery and further, the plaintiffs did not
have the wherewithal to pay the sum of Rs.2,00,000/-, both of which
have been disproved by the evidence of P.W.2 and the written
statement of the first defendant, who is also the attesting witness in
Ex.A1.
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9. The lower Appellate Court had dismissed the appeal, as
against which, the present second appeal is filed with a delay petition.
As already narrated, the affidavit filed in support of this condone
delay petition does not give out a plausible reason for the enormous
delay of 1922 days. Further, the delay has not been explained
properly. It is no doubt true that the Court has to adopt a liberal
approach in considering the delay. However, the Court has also to bear
in mind the injustice that would be fall on the respondents if the delay
is condoned.
10. I see no merits in allowing this condone delay petition.
Therefore, this condone delay petition C.M.P.No.21126 of 2022
stands dismissed. Consequently, this second appeal S.A.SR.No.47467
of 2021 stands rejected. No costs.
11.12.2023
Index : Yes/No
Speaking order/non-speaking order
ssa
To
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1. The I Additional District and Sessions Judge, Vellore.
2.The Subordinate Judge, Gudiyatham.
3.The Section Officer,
V.R.Section, High Court, Madras.
P.T.ASHA, J.,
ssa
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and
11.12.2023
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