Madras High Court
K.G.Chandrasekaran vs J.Dhanapal (Died) on 4 July, 2023
C.R.P.No.4746 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.07.2023
CORAM :
THE HON'BLE MR.JUSTICE V.LAKSHMINARAYANAN
C.R.P.No.4746 of 2017
and C.M.P.No.22332 of 2017
K.G.Chandrasekaran .. Petitioner
Versus
1. J.Dhanapal (Died)
2. J.Ravichandran
3. Latha
4. Shankar
5. Kamalaveni
6. Dhanapal
7. Ramesh
8. Rajesh
9. Aananthi
10. Saroja
11. A.Janaki
12. D.Kayethri
13. Minor D.Sakthi Mahendran
(Minor rep. by mother, next friend and
natural guardian A.Janaki) .. Respondents
RR-11 to 13 brought on record as LRs of the deceased R1
viz Dhanapal vide Court order, dated 08.03.2021 made in
C.M.P.No.4644 of 2021 in C.R.P.No.4746 of 2017
Prayer : Civil Revision Petition filed under Section 115 of the Civil
Procedure Code to set aside the fair order dated 03.10.2017 in I.A.No.299 of
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1/10
C.R.P.No.4746 of 2017
2014 in A.S.No.126 of 2008 on the file of Principal District Court, Erode
and allow the Civil Revision Petition.
For Petitioners : Mr.S.Kaithamalai Kumaran
For Respondents : Mr.N.Manokaran, for RR-2 and 12
: R1 - Died
: RR-3 to 10 - Given up
: No Appearance for R11
: R13 (Minor represented by R11)
ORDER
Three applications were taken out to condone the delay in
representation. The three applications were I.A.No.299 of 2014, I.A.No.300
of 2014 and I.A.No.301 of 2014. All the applications wanted the Court to
condone the delay of 1512, 217 and 240 days respectively in representation.
2. The appeals in A.S.Nos.126 and 127 of 2008 were dismissed for
default on 16.03.2009. The appeals arise out of suits namely, O.S.No.602
and 497 of 1993. The suits were dismissed on 23.07.2007. O.S.No.602 of
1993 was a suit for bare injunction not to alienate the property and
O.S.No.497 of 1993 was filed for the relief of specific performance on
agreement of sale, dated 30.11.1990.
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C.R.P.No.4746 of 2017
3. On the dismissal of the suit, the party engaged a Lawyer and filed
appeals before the learned Principal District Judge at Erode. The said
appeals, as already narrated, were dismissed for default and within a period
of 30 days, granted under the Limitation Act, 1963, the applications were
taken out to restore the appeals under Order XLI R 19 of the Code of Civil
Procedure. The three applications in I.A.Nos.229 to 301 of 2019 arise out
of these applications filed to restore the appeals.
4. The usual reason that is given by every Counsel was also given in
this case namely, the bundle got misplaced and therefore, the applications
could not be represented in time. However, what is surprising in this case is
that the affidavit that was filed, seems to be a printed format, in which,
blanks alone have been filled up. Fortunately, for the respondents, it is the
Advocate himself who has sworn to the affidavit. If a Clerk had sworn to
the affidavit, perhaps, the Court would have taken a different view. The
learned District Judge, Erode after analaysing the entire case in particular,
following the view in the judgment of this Court in Bhuvaneswari Vs.
R.Elumalai1, had condoned the delay on imposing heavy costs. She had
1 (2002) 3 CTC 22
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C.R.P.No.4746 of 2017
directed the payment of Rs.15,000/- for condonation of delay in
I.A.Nos.299, 300 and 301 of 2014.
5. Mr.S.Kaithamalai Kumaran, learned Counsel appearing for the
Civil Revision Petitioner, would point out the lackadaisical attitude of the
party in filing of affidavit which is bereft of any detail. He would state that
unless and until cause, which are equal to "sufficient cause", had been
shown by the party, the delay ought not to have been condoned. To that
effect, he would rely upon the judgment of the Supreme Court in H.Dohil
Constructions Company Private Limited Vs. Nahar Exports Limited and
Anr.2. In the said case, the Supreme Court was pleased to consider an
application, which had been filed under Order XLIX R 3-A of the Code of
Civil Procedure, along with an application filed for condonation of delay in
refiling (representation). The Supreme Court had held that where there is
gross negligence and lack of bona fides on part of the appellant, then the
delay should not be condoned. Citing this as a precedent, Mr.S.Kaithamalai
Kumaran, learned Counsel would vehemently contend that in this case,
there is absolutely no reason that has been given and therefore, the delay
ought not to be condoned.
2 (2015) 1 SCC 680
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C.R.P.No.4746 of 2017
6. Per contra, Mr.N.Manokaran, learned Counsel for the respondents,
would submit that the details have been given in the affidavit. The party
had engaged a Lawyer and it was the mistake of the Lawyer that the papers
have gone missing. He would state that at best, the party can rely upon the
Lawyer to prosecute his case in a proper manner and for the mistake of the
Lawyer, the client should not be penalised. He would also submit that
taking into consideration the surrounding circumstances, the learned Judge
has condoned the delay on payment of the costs of Rs.15,000/- which itself
is a heavy punishment on the party.
7. He would also rely upon the judgment of the Supreme Court in
Rafiq and Anr. Vs. Munshilal and Anr.3 to state that a mistake of the
Lawyer must not be fastened on the client. He also drew my attention to the
judgment of this Court in Bhuvaneswari Vs. R.Elumalai's case (cited
supra), whereunder, this Court had held that the condonation of delay in
representation (refiling) is, at best, an administrative order and is not a
judicial order. He would also contend that since the Trial Court had
exercised discretion in condoning the delay, the High Court must not
3 AIR 1981 SC 1400 : (1981) 2 SCC 788
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C.R.P.No.4746 of 2017
interfere with the same under Article 227 of the Constitution of India. He
has also submitted that if this Court comes to a conclusion that the
condonation of delay need not be interfered with, he will co-operate for
disposal of the appeals within the time limit fixed by this Court.
8. I have carefully considered the arguments made on either side. I
am afraid that I am not able to agree with Mr.S.Kaithamalai Kumaran,
learned Counsel for the petitioner, for the simple reason that this Court
cannot interfere with an exercise of discretion unless and until the same is
capricious or arbitrary. This has been laid down by the Supreme Court in
N.Balakrishnan Vs. M.Krishnamurthy4. This proposition has been laid
for, even a situation which is higher than a case of condonation of delay in
representation i.e., in the case of condonation of delay in filing under
Section 5 of the Limitation Act, 1963. When such high bar has been placed
with respect to exercise of jurisdiction under Article 227 of the Constitution
of India, I am constrained to not to interfere with the order of the Court.
9. Apart from that, for more than five decades, the consistent view of
this Court has been that condonation of delay in representation is a matter
4 (1998) 7 SCC 123
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C.R.P.No.4746 of 2017
between the Court and the party and the defendant does not have a say in
the same. This principle is laid down by this Court in its judgment in
Y.Cusbar Vs. K.Subbarayan5. In fact, a learned Single Judge of this Court
in Bhuvaneswari Vs. R.Elumalai's case (cited supra) has held that
condonation of delay in representation is an administrative delay and cannot
be treated on the same plane as Section 5 of the Limitation Act, 1963 which
gives a right to the opposing party to oppose and get the application
dismissed. Being an administrative delay, the delay in representation can be
condoned by the Court even without notice to the other side. However, due
to caution and prudence, normally, Courts issue notice to the other side
where the delay in representation is very large as in the present case.
10. Be that as it may, since the learned Trial Judge has exercised her
discretion and condoned the delay, I am not inclined to interfere with the
same. However, the costs of Rs.15,000/- seems to be very less compared to
the number of days in delay that has been incurred. Therefore, I increase the
costs by a further sum of Rs.15,000/-. The said costs must be paid by the
respondents to the petitioner within a period of four weeks from today. The
matter, being of the year 1993, the learned Principal District Judge, Erode,
5 1993 TLNJ 375 (DB)
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C.R.P.No.4746 of 2017
shall give priority to the case and take it up for hearing and dispose it off on
or before 31.10.2023 and submit a report to this Court.
11. Mr.N.Manokaran, learned Counsel for the respondents, states that
the amount, directed to be deposited by the lower Appellate Court, has
already been deposited on 23.10.2017 and the application, under Order XLI
R 19 of the Code of Civil Procedure, has been numbered as I.A.No.268 of
2017. Since the application under Order XLI R 19 of the Code of Civil
Procedure has been filed without any delay, the learned District Judge,
Erode is directed to allow the application and restore the appeal on to its file
and dispose off the appeal as expeditiously as possible within the time limit
as fixed by this Court.
12. With the above modification, the Civil Revision Petition stands
partly allowed. No costs. Consequently, connected miscellaneous petition
is closed.
04.07.2023
Index : yes/no
Speaking order/Non-speaking order
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C.R.P.No.4746 of 2017
Neutral Citation : yes/no
grs
To
The Principal District Court,
Erode.
https://www.mhc.tn.gov.in/judis
C.R.P.No.4746 of 2017
V.LAKSHMINARAYANAN, J.
grs
C.R.P.No.4746 of 2017
and C.M.P.No.22332 of 2017
04.07.2023
https://www.mhc.tn.gov.in/judis
