Madras High Court
Gothandaramaraj vs M.S.G.Mariappan(Died) on 29 March, 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.03.2023
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
C.M.P(MD)No.5852 of 2019
in
C.M.S.A(MD)SR.No.18871 of 2019
and
C.M.S.A(MD)SR.No.18871 of 2019
C.M.P(MD)No.5852 of 2019
Gothandaramaraj :Petitioner/Appellant
.vs.
1.M.S.G.Mariappan(died)
2.Subburaj Naidu
3.Rajeswari
4.Sethusubramanian
5.Shanmugarubaraj
6.Aunsiyadevi
7.Mariammal
8.Jothilakshmi
9.Meenambigai
10.G.M.Ramasamy
11.Sri Bhuvaneswari
1/8
https://www.mhc.tn.gov.in/judis
12.Kanagalakshmi
13.Navaneetha Krishnan
14.Manikandan :Respondents/Respondents
(Respondents 7 to 14 are brought on record as legal
representatives of the deceased first respondent as per order of
this Court made in C.M.P(MD)Nos.10321 to 10323 of 2019 in
C.M.S.A(MD)SR.No.18871 of 2019, dated 21.7.2020)
PRAYER IN C.M.P(MD)NO.5852 OF 2019:Civil Miscellaneous
Petition filed under Section 5 of the Limitation Act to condone the
delay of 966 days in filing the above Civil Miscellaneous Second
Appeal as against the fair and decretal order made in C.M.A.No.
16 of 2014, dated 7.6.2014, on the file of the Ist Additional District
Judge, Tirunelveli.
PRAYER IN C.M.S.A(MD)SR.NO.18871 OF 2019: Civil
Miscellaneous Second Appeal filed under Order 21 Rule 58 r/w
Section 100 of Civil Procedure Code against the judgment and
decree made in C.M.ANo.16 of 2014, dated 7.6.2016, on the file of
the I Additional District Court, Tirunelveli confirming the judgment
and decree made in E.A.No.198 of 2010 in E.P.No.34 of 2004 in
O.S.No.125 of 1997, dated 23.4.2014, on the file of Sub-Court,
Ambasamudram.
For Petitioner/
Appellant in both
cases :Mr.A.Sankara
Ramasubramanian
For Respondents :Mr.V.Meenakshisundaram
7 to 14
in both cases
2/8
https://www.mhc.tn.gov.in/judis
COMMON JUDGMENT
***********************
This Miscellaneous Petition has been filed seeking to condone
the delay of 966 days in filing the above Civil Miscellaneous
Second Appeal as against the fair and decretal order made in
C.M.A.No.16 of 2014, dated 7.6.2016, on the file of the I Additional
District Judge, Tirunelveli.
2.Heard the learned counsel appearing on either side and
perused the materials placed before this Court.
3.It is the contention of the Petitioner that the first
respondent has filed a money suit in O.S.No.125 of 1997 as against
the second respondent and also obtained a decree for recovery of
money. Thereafter, the first respondent filed an execution petition
in E.P.No.34 of 2004 in O.S.No.125 of 1997 before the Sub-Court,
Ambasamudram. The Petitioner would further submit that the
subject property does not belong to the father of the Petitioner but
it belongs to the grand-father who executed a Will(Sealed Will) on
09.10.1980 in favour of the Petitioner and one Ramakrishnan and
the same came to the Petitioner's knowledge only in the year 2009
and filed an objection petition under Order 21 Rule 58 of Civil
Procedure Code in E.A.No.198 of 2013 in E.P.No.34 of 2004 in
https://www.mhc.tn.gov.in/judis
O.S.No.125 of 1997 before the Sub-Court Ambasamudram and the
same has been dismissed on 23.4.2014. As against the dismissal
order, the Petitioner had preferred an appeal in C.M.A.No.16 of
2014 before the I Additional District Court, Tirunelveli and the
same was also dismissed on 7.6.2016. However, the dismissal of the
appeal was not duly informed to the Petitioner by the counsel on
record before the Court below and when he approached the Court
in the month of January 2019, he came to know about the result of
the appeal. Thereafter, the Petitioner has applied for certified
copies of the same and in this regard there was a delay of 966 days
in preferring the above C.M.S.A. Hence the Petitioner has filed the
above Petition to condone the delay of 966 days in preferring the
above Civil Miscellaneous Second Appeal.
4.On perusal of the affidavit filed in support of the condone
delay petition, this Court is of the view that the same is bereft of
particulars. No doubt, normally, the word ''sufficient cause'' to
receive a liberal approach when the substantive rights of the
parties are involved in appeal. At the same time, when such
applications are filed for the sake of defeating the rights of the
other parties to enjoy the fruits of the decree and without even a
semblance of reason, delay even a slightent cannot be condoned.
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this Petition has been filed. Further, the Petitioner has to explain
before the Court each and every day delay, the Court cannot
condone the delay in a mechanical manner, by merely adopting a
liberal approach, without any sufficient reason being pleaded.
5.It is the further contention of the Petitioner that he has
become entitled to the property by virtue of the Will said to have
been left by the grand-father of the Petitioner. According to
Petitioner the Will is of the year 1980 and the same came to the
knowledge of the Petitioner in the year 2009 and thereafter filed an
objection petition under Order 21 Rule 58 of Civil Procedure Code.
Even the said Will has not been proved before the Court below. Be
that as it may, as far as the application for condone delay is
concerned, the main contention of the Petitioner is that the result
of C.M.A was not duly informed by the counsel and only in the year
2019 he came to know about the same.
6.It has to be noted that even such a contention is accepted,
if the Petitioner is really intended to pursue his remedy with all
vigil, he ought to have taken immediate steps after having come to
know about the result of the C.M.A in the month of January 2019.
After that he has filed the appeal on 29.4.2019, with the aforesaid
https://www.mhc.tn.gov.in/judis
delay. The very conduct of the Petitioner in taking action very
lethargically to pursue his so-called legal right indicate that he has
not come to the Court with clean hands and the Copy Application
was made ready and delivered on 11.4.2019 and even then, he has
not approached the Court immediately and has filed this appeal
only on 29.4.2019 with such huge delay. These facts show that the
Petitioner has pursued his case with delay at each and every stage.
This Court is of the view that when a person who is really
interested in prosecuting his remedy before a Court of Law, should
be always be vigilant. He cannot just blame the lawyers stating the
result of the C.M.A has not been intimated to him in time. If really
the Petitioner has pursued his case properly with all vigil, he would
have come to know about the result long back, when the C.M.A was
dismissed, which shows the lethargic attitude of the Petitioner at
each and every stage of case. The reasons stated in the affidavit
are only invented for the purpose of filing this application.
7.In such view of the matter, this Court is not satisfied with
the reasons stated in the affidavit filed in support of this Petition
and each and every day of delay has not been properly explained.
For all these reasons, this Court finds no merit in the Condone
delay petition and the same deserves to be dismissed.
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8.Accordingly, this Civil Miscellaneous Petition stands
dismissed. Consequently, Civil Miscellaneous Second Appeal stands
rejected at SR stage itself. No costs.
29.03.2023
Index:Yes/No
Internet:Yes/No
NCC:Yes/No
vsn
To
1.The Ist Additional District Judge,
Tirunelveli.
2.The Sub-Judge,
Ambasamudram.
3.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
N.SATHISH KUMAR.,J.
vsn
JUDGMENT MADE IN
C.M.P(MD)No.5852 of 2019
in
C.M.S.A(MD)SR.No.18871 of 2019
and
C.M.S.A(MD)SR.No.18871 of 2019
29.03.2023
https://www.mhc.tn.gov.in/judis
