Madras High Court
Maha Jabeen vs M.Syed Sulthan Ibrahim on 21 June, 2023
C.M.P.(MD).No.11041 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.06.2023
CORAM
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
C.M.P.(MD).No.11041 of 2022
in
A.S.(MD).SR.No.69405 of 2022
C.M.P.(MD).No.11041 of 2022
1.Maha Jabeen
2.K.Mahe Zhameem
3.K.Nazeem
4.K.Mumtaj Begam
5.K.Mahaboob Begam
6.P.Shanawaz Begam
7.K.Sharmila Kulsum
8.K.Kulam Dhasthakeer Khader
... Petitioners
Vs.
1.M.Syed Sulthan Ibrahim
2.A.Syed Ibrahim
3.A.Jamal Mohamed
4.A.Sheik Dawood
5.S.Abdul Raheem
6.M.Mayandi Thever
7.A.Shajahan
8.K.Noorjahan
9.Ismath
10.I.Sadham Hussain
11.S.Ignatius
12.Janibai @ Khathiri
13.Khader Maideen
14.Mohammed Raffeek
15.Dindigul Town Co-operative Bank
through its Secretary,
New Pensioner Street. ... Respondents
https://www.mhc.tn.gov.in/judis
C.M.P.(MD).No.11041 of 2022
PRAYER: This application has been filed under Order 41 Rule 3A of C.P.C., to
condone the delay of 3773 days in filing the first appeal and take this first
appeal on file.
For Petitioners : Mr.F.X.Eugene
For R2 and R3 : Mr.H.Lakshmi Shankar
For R4 : Mr.S.Ramesh
For R5 : Mr.M.P.Senthil
A.S.(MD).SR.No.69405 of 2022
1.Maha Jabeen
2.K.Mahe Zhameem
3.K.Nazeem
4.K.Mumtaj Begam
5.K.Mahaboob Begam
6.P.Shanawaz Begam
7.K.Sharmila Kulsum
8.K.Kulam Dhasthakeer Khader
... Petitioners
Vs.
1.M.Syed Sulthan Ibrahim
2.A.Syed Ibrahim
3.A.Jamal Mohamed
4.A.Sheik Dawood
5.S.Abdul Raheem
6.M.Mayandi Thever
7.A.Shajahan
8.K.Noorjahan
9.Ismath
10.I.Sadham Hussain
11.S.Ignatius
12.Janibai @ Khathiri
13.Khader Maideen
14.Mohammed Raffeek
https://www.mhc.tn.gov.in/judis
C.M.P.(MD).No.11041 of 2022
15.Dindigul Town Co-operative Bank
through its Secretary,
New Pensioner Street. ... Respondents
PRAYER: This appeal has been filed under Order 41 Rule 3A of C.P.C.,
against the judgment and decree dated 11.04.2012 in O.S.No.52 of 2010 on the
file of the District Court, Fast Track Court, Dindigul.
For Petitioners : Mr.F.X.Eugene
For R2 and R3 : Mr.H.Lakshmi Shankar
For R4 : Mr.S.Ramesh
For R5 : Mr.M.P.Senthil
COMMON JUDGMENT
This application has been filed to condone the delay of 3773 days in
filing the first appeal.
2. The suit in O.S.No.52 of 2010 has been originally filed for declaration
and recovery of possession, which has been dismissed by the trial Court.
3. It is the contention of the petitioners that the suit was dismissed on
11.04.2012. After obtaining the certified copies, the first petitioner has
entrusted all the papers to the Senior Advocate M.S.Balasubramania Iyer, who
was practicing in the High Court of Madurai Bench, on 05.07.2012 and the
https://www.mhc.tn.gov.in/judis
C.M.P.(MD).No.11041 of 2022
Advocate directed the first petitioner to bring necessary Court fees and other
expenses within a month on 01.08.2012. He has also made arrangements for
necessary money and handed over the bundle to the Advocate as early as on
01.08.2012. The Advocate also directed the first petitioner to meet him within
15 days. Thereafter, the first petitioner contacted the Advocate on 14.08.2012
itself. On 14.08.2012, the Advocate prepared the first appeal and obtained
signature from the first petitioner in the memorandum of appeal. Thereafter, on
22.08.2012, when the first petitioner contacted the Advocate, he told him that
since he has missed some papers and mixed those papers along with some other
bundles, he has not filed the appeal. Thereafter, he contacted the Advocate over
phone frequently. But, he did not file the appeal and he has not traced the
missed papers. Once again, he met the Advocate on 02.01.2013 and on that day
also he told the first petitioner that he would communicate him immediately
when he traces those missed papers. But he did not inform the first petitioner
anything. Thereafter only the first petitioner came to know that the Advocate
passed away on 31.03.2022. Therefore, he went to the Advocate office and
searched the papers and got the balance amount and once again he approached
the trial Court and obtained the certified copies on 06.08.2022.
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C.M.P.(MD).No.11041 of 2022
4. Even though the copies were made ready on 21.04.2022, he could get
the copies only on 05.07.2022. Thereafter, he entrusted the papers with another
Advocate at Madurai. After collected the money, he met the Advocate on
01.09.2022 and he directed the first petitioner to come on 22.10.2011.
Therefore, there was a delay of 3773 days in filing the first appeal.
5. It is the stand of the respondents that the suit was dismissed on
11.04.2012. The appeal has been filed after the period of 10 years and 8
months. The allegation that the first petitioner entrusted the case papers to
M.S.Balasubramania Iyer, on 05.07.2012 is false. Further, the allegation that he
has paid the fees also false and the allegation that he met the Advocate is also
false. The petitioners are actually obtained the certified copies only after ten
years from the trial Court and thereafter, this appeal has been filed.
6. The learned counsel appearing for the petitioners would submit that
the reasons assigned for the delay are bona fide and genuine and the first
petitioner has entrusted the papers to the Advocate in time. However, the appeal
has not been filed by the Advocate. Therefore, the delay has to be condoned and
the petitioners may be permitted to agitate their substantive rights on merits.
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C.M.P.(MD).No.11041 of 2022
7. The learned counsel appearing for the respondents would submit that
the reason for the delay has been invented for the purpose of filing an
application, that too after the death of the very seasoned civil lawyer.
8. In the light of the above submissions, now the point for consideration
in this application is whether the petitioners have shown sufficient cause to
condone such huge delay?
9. It is an admitted fact that the suit has been filed by the petitioners for
declaration and recovery of possession and the same has been dismissed as
early as on 11.04.2012. The allegation that he has entrusted the copies to
M.S.Balasubramania Iyer to file an appeal and he did not file the said appeal is
without any basis. It is relevant to note that this Court has also taken note of the
conduct of the parties and the lawyer, whose name is referred to in the petition,
M.S.Balasubramania Iyer is a Renowned Senior Advocate and very experienced
civil lawyer. He has not only practiced before the District Court but also this
Court frequently till his death in the year 2022. This Court has also seen his
conduct in appearing and conducting the cases before this Court. He was one of
best civil lawyer seen by the Bench. This application has been filed after the
https://www.mhc.tn.gov.in/judis
C.M.P.(MD).No.11041 of 2022
death of the said Advocate, making allegation as if he has not filed the appeal
from 2012. The said allegation in the opinion of this Court is nothing but
invented only to show some sufficient cause to the huge delay. The seasoned
civil lawyer was regular in all matters and pursued the matter even at the age of
87 before this Court. Therefore, the very allegation that he has not filed an
appeal from 2012 is highly improbable and invented for the purpose of this
case.
10. It is relevant to note that even the allegations are true that he has not
filed an appeal, the very conduct of the petitioners remaining silent till his death
for more than 10 years indicate that the petitioners have not come to the Court
with bona fidely. On perusal of the certified copies, it is seen that he has
obtained the certified copies only after 10 years. But the allegation of the
petitioners that he has collected the papers from the advocate office after his
death. Therefore, when the suit itself was dismissed on 11.04.2012 ie., 10 years
back, inventing new theory, making the false allegations against the very
reputed lawyer indicate that the petitioners lack bona fide.
11. Therefore, this Court is of the view that when there is no sufficient
cause shown for such huge delay and the matter has been decided 10 years
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C.M.P.(MD).No.11041 of 2022
back, it cannot be reopened. Hence, the application deserves to be dismissed.
12. In view of the dismissal of the application in C.M.P.(MD).No.11041
of 2022, the Appeal Suit is rejected.
13. At this stage, the learned counsel appearing for the petitioners seeks
permission of this Court to return the Court fee paid on the appeal.
14. Considering the request of the learned counsel for the petitioners,
since the application in C.M.P.(MD).No.11041 of 2022 is rejected, the Registry
is directed to refund the Court fee, as per law.
21.06.2023
akv
To
The District Court,
Fast Track Court,
Dindigul.
https://www.mhc.tn.gov.in/judis
C.M.P.(MD).No.11041 of 2022
N.SATHISH KUMAR,J.
akv
C.M.P.(MD).No.11041 of 2022
in
A.S.(MD).SR.No.69405 of 2022
21.06.2023
https://www.mhc.tn.gov.in/judis
