Madras High Court
Kanagaraj vs Russel Raj on 6 March, 2023
C.M.P.(MD).No.4661 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 06.03.2023
CORAM
THE HONOURABLE MR. JUSTICE ABDUL QUDDHOSE
C.M.P.(MD).No.4661 of 2018
in
S.A.(MD).No.SR9803 of 2018
1.Kanagaraj
2.Stalin
3.Nesian ... Petitioners/Appellants
Vs.
1.Russel Raj
2.Mercy
3.Vijila
4.Neelakanta Sarma
5.Ramachandra Sarma
6.Parameswara Sarma
7.Vilathurai Village Panchayat
Represented by its President,
Vilathurai Panchayat Office,
Kunnathoor Village,
Kappukad P.O,
Vilavancode Taluk,
Kanyakumari District.
8.Christober Jeya Raj ...Respondents/Respondents
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1/7
C.M.P.(MD).No.4661 of 2018
Prayer in C.M.P.(MD).No.4661 of 2018: Civil Miscellaneous Petition is filed
under Order 41 Rule 3(A) of CPC to condone the delay of 443 days in
filing the above Second Appeal.
Prayer in S.A.(MD).No.SR9803 of 2018: Second Appeal is filed under Section
100 of CPC to allow te Second Appeal and set aside the judgment and decree
passed in A.S.No.83 of 2012 dated 08.01.2016 on the file of the Subordinate
Judge (Camp Court), Kuzhithurai, reversing the judgment and decree passed in
O.S.No.209 of 2003 dated 27.08.2012 on the file of the Principal District
Munsif, Kuzhithurai.
For Petitioners : Mr.S.Titus
For R-1 : Mr.I.Robert Chandrakumar
For R-2 to R-6 & R-8 : No Appearance
For R-7 : Mr.T.Villavankothai,
Additional Government Pleader.
ORDER
The Civil Miscellaneous Petition is filed seeking to condone the delay of
443 days in filing the Second Appeal.
2. The petitioners are the plaintiffs in the suit in O.S.No.209 of 2003 on
the file of the Principal District Munsif, Kuzhithurai. The said suit was filed to
declare the judgment and decree dated 29.06.1994 passed in O.S.No.332 of
1983 as null and void. The petitioners have also sought for possession of the
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C.M.P.(MD).No.4661 of 2018
suit schedule property. The suit in O.S.No.209 of 2003 filed by the petitioners
came to be decreed in their favour by the judgment and decree of the District
Munsif Court, Kuzhithurai on 27.08.2012. Aggrieved by the same, the
defendants in the said suit, who are the respondents in the present Second
Appeal filed by the petitioners, filed A.S.No.83 of 2012 before the Sub Court,
Kuzhithurai. By judgment and decree dated 08.01.2016 in A.S.No.83 of 2012,
the Sub Court, Kuzhiturai reversed the findings of the Trial Court by allowing
the appeal filed by the respondents herein. Accordingly, the suit in O.S.No.209
of 2003 filed by the petitioners herein came to be dismissed. Aggrieved by the
judgment and decree of the Sub Court, Kuzhithurai dated 08.01.2016 in
A.S.No.83 of 2012, the petitioners have preferred the Second Appeal and they
have filed this Civil Miscellaneous Petition seeking to condone the delay of
443 days in filing the Second Appeal.
3. In the affidavit filed in support of this Civil Miscellaneous Petition, the
only reason given by the petitioners seeking for condonation of inordinate
delay of 443 days in filing the Second Appeal is that the lower court advocate
did not inform the petitioners about the receiving of the judgment and decree
from the First Appellate Court. According to them, only on 05.03.2018, they
were able to get back the case bundles pertaining to the judgment and decree
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C.M.P.(MD).No.4661 of 2018
dated 08.01.2016 passed in A.S.No.83 of 2012 from the lower court advocate.
They have also admitted in the affidavit filed in support of this Civil
Miscellaneous Petition that the copy application seeking to get a certified copy
of the judgment and decree dated 08.01.2016 in A.S.No.83 of 2012 was filed on
11.01.2016 and the said certified copy was also made ready on 22.09.2016 and
it was delivered on 24.09.2016. However, as seen from the affidavit filed in
support of this Civil Miscellaneous Petition, excepting for making a bald
averment that only on 05.03.2018, the petitioners were able to collect the case
bundle from the lower court advocate, they have not stated as to what steps the
petitioners took to ascertain the details from the lower court advocate between
08.01.2016, when the judgment and decree was passed in A.S.No.83 of 2012
and 05.03.2018 and till the date when they claim to be aware of the judgment
and decree dated 08.01.2016 passed in A.S.No.83 of 2012.
4. Any prudent litigant would have followed up the status of the case.
But, in the instant case on hand, it is noticed that the petitioners have been
indifferent in following up the status with regard to the judgment and decree
dated 08.01.2016 passed by the Lower Appellate Court in A.S.No.83 of 2012.
Mere bald averments are not sufficient while seeking for condonation of an
inordinate delay, which, in the instant case is 443 days.
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C.M.P.(MD).No.4661 of 2018
5. The respondents have also contended that the petitioners are residing
very close to their advocate's office, though the same is disputed by the learned
counsel for the petitioners.
6. Admittedly, the petitioners have challenged the judgment and decree
dated 29.06.1994 passed in O.S.No.332 of 1983 in the suit in O.S.No.209 of
2003. The suit in O.S.No.209 of 2003 was filed by the petitioners after a lapse
of more than nine years from the date of the judgment and decree passed in
O.S.No.332 of 1983. Any litigation will have to attain finality at the earliest
possible time and it cannot be prolonged forever. If the petitioners were really
interested in fighting this litigation in its true spirit for which it was instituted,
they would have been diligent enough to file the Second Appeal on time. But
have filed the same with an inordinate delay of 443 days, that too, when their
suit has challenged a judgment and decree passed in another suit in O.S.No.332
of 1983, which was passed on 29.06.1994. Sufficient reasons will have to be
given for condoning such an inordinate delay of 443 days.
7. For the foregoing reasons, this Court is of the considered view that
excepting for making bald averments in the affidavit filed in support of this
Civil Miscellaneous Petition, no proper reason has been given by the petitioners
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C.M.P.(MD).No.4661 of 2018
for condoning this inordinate delay. In the result, there is no merit in this Civil
Miscellaneous Petition. Accordingly, this Civil Miscellaneous Petition is
dismissed. Consequently, S.A.(MD).No.SR9803 of 2018 is rejected.
06.03.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes/ No
Lm
To
1.The Subordinate Court (Camp Court),
Kuzhithurai.
2.The Principal District Munsif Court,
Kuzhithurai.
3.The President,
Vilathurai Village Panchayat
Vilathurai Panchayat Office,
Kunnathoor Village,
Kappukad P.O,
Vilavancode Taluk,
Kanyakumari District.
4.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.M.P.(MD).No.4661 of 2018
ABDUL QUDDHOSE, J.
Lm
C.M.P.(MD).No.4661 of 2018
in
S.A.(MD).No.SR9803 of 2018
06.03.2023
https://www.mhc.tn.gov.in/judis
