Madras High Court
Duraiparimalam vs Meenatchi on 30 March, 2023
CMP No.19074 of 2022
and AS.SR.No.109203 of 2022
and CMP.No.7447 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.03.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
and
THE HONOURABLE MRS.JUSTICE R.KALAIMATHI
C.M.P.No.19074 of 2022
and A.S.SR.No.109203 of 2022
and C.M.P.No.7447 of 2023
Duraiparimalam ... Petitioner/Appellant
-vs-
1. Meenatchi
2. Ranjith
3. Ranjana
4. Desingu .. Respondents/Respondents
Prayer in CMP.No.19074 of 2022: This petition has been filed under Order 41
Rule 3-A of C.P.C. to condone the delay of 2313 days in filing the appeal suit
before this Court as against the judgment and decree as made in OS.No.143 of
2011, dated 27.01.2016.
Prayer in AS.SR.No.109203 of 2022: This Appeal Suit filed under Section 96
read with Order XLI Rule 1 of CPC to set aside the judgment and decree made in
OS.No.143 of 2011 dated 27.01.2016 on the file of the Principal District Judge,
Cuddalore.
For appellant : Mr.V.Balamurugan
For R1 to R3 : No Appearance
For R4 : Mr.D.Ravichander
*****
1/8
https://www.mhc.tn.gov.in/judis
CMP No.19074 of 2022
and AS.SR.No.109203 of 2022
and CMP.No.7447 of 2023
JUDGMENT
The present application has been filed to condone the delay of 2313 days in
filing the Appeal Suit.
2. Mr.V.Balamurugan, learned counsel for the Petitioner / Appellant has
submitted that the original notice sent to the respondents 1 to 3 has been returned
as "No such person" and hence, he filed C.M.P.No.7447 of 2023 for substitution of
service by effecting paper publication.
3. Mr.D.Ravichander, learned counsel appearing for the fourth respondent
has contended that the fourth respondent, without knowing about the mortgage, had
advanced money. Subsequently, when a demand was made by the fourth
respondent to refund the money, the same was not paid by the petitioner herein.
Hence, suits in O.S.Nos.91 of 2007 and 143 of 2011 were filed before the
Principal District Court, Cuddalore and the same were decreed in favour of the 4th
respondent for refund of amount together with interest. He has also drawn the
attention of this Court to the undertaking given by the petitioner on 15.03.2023 to
the effect that she is willing to deposit a sum of Rs.10,00,000/- to show her bona
https://www.mhc.tn.gov.in/judis
CMP No.19074 of 2022
and AS.SR.No.109203 of 2022
and CMP.No.7447 of 2023
fides. He has further contended that though the Execution Petition in E.P.No.22 of
2018 is now ripe for orders, the petitioner is not inclined to part with any money
nor has she questioned the judgment and decree in O.S.No.91 of 2007.
4. Mr.Balamurugan, learned counsel for the petitioner, in response, has
submitted that the petitioner is now willing to deposit an amount of Rs.13,00,000/-.
5. Be that as it may, even going by the affidavit, the judgment and decree in
the suit was delivered on 27.01.2016 and the copy application was made only in
the year 2022, i.e., after a lapse nearly six years. The petitioner has stated that in
view of her heart ailment and his consequential hospitalization coupled with the
subsequent lock down on account of Covid-19 pandemic, the delay had occurred in
filing the copy application and appeal.
6. This stance of the petitioner cannot be countenanced for the reason that
excluding the period of 2 years during which the pandemic was at its peak, still
there is a delay of more than 4 years in preferring the appeal, for which there is no
explanation forthcoming on the side of the petitioner.
https://www.mhc.tn.gov.in/judis
CMP No.19074 of 2022
and AS.SR.No.109203 of 2022
and CMP.No.7447 of 2023
7. In similar circumstances, a Division Bench of this Court (SVNJ & MVJ),
by an order dated 15.02.2018, in the case of M/s. Ruskim Sea Foods Limited vs.
M/s. Evergreen Sea Foods Pvt. Ltd., reported in MANU/TN/0876/2018 filed to
condone the delay of 765 days in preferring the Appeal, dismissed the case.
Relevant paragraph of the said decision is extracted hereunder:
"32. Ordinarily, the 'Condonation of Delay' is a matter of
discretion to be exercised by the Concerned Court. Also, it is true that
the length and breadth of delay is not relevant, but the acceptance of
explanation can only be a relevant criterion for the concerned Court to
deal with/ condone the aspect of 'Condonation of Delay'. However, in
this regard, the Petitioner / concerned litigant is to offer / ascribe
sufficient reasons or project sufficient cause or good cause to condone
the delay with a view to enable the Concerned Court to take a liberal
view with a view to secure the ends of justice.”
8. The Hon'ble Supreme Court in the case of Majji Sannemma @
Sanyasirao vs Reddy Sridevi and others, reported in MANU/SC/1269/2021, has
held as follows:
“7.3 In the case of Pundlik Jalam Patil (supra), it is
observed as under:-
"The laws of limitation are founded on public policy.
Statutes of limitation are sometimes described as "statutes of
peace". An unlimited and perpetual threat of limitation
creates insecurity and uncertainty; some kind of limitation is
essential for public order. The principle is based on the
maxim "interest reipublicae ut sit finis litium", that is, the
interest of the State requires that there should be end to
litigation but at the same time laws of limitation are a means
https://www.mhc.tn.gov.in/judis
CMP No.19074 of 2022
and AS.SR.No.109203 of 2022
and CMP.No.7447 of 2023
to ensure private justice suppressing fraud and perjury,
quickening diligence and preventing oppression. The object
for fixing time-limit for litigation is based on public policy
fixing a lifespan for legal remedy for the purpose of general
welfare. They are meant to see that the parties do not resort to
dilatory tactics but avail their legal remedies promptly.
Salmond in his Jurisprudence states that the laws come to the
assistance of the vigilant and not of the sleepy."
7.4 In the case of Basawaraj (supra), it is observed
and held by this Court that the discretion to condone the
delay has to be exercised judiciously based on facts and
circumstances of each case. It is further observed that the
expression "sufficient cause" cannot be liberally interpreted if
negligence, inaction or lack of bona fides is attributed to the
party. It is further observed that even though limitation may
harshly affect rights of a party but it has to be applied with all
its rigour when prescribed by statute. It is further observed
that in case a party has acted with negligence, lack of bona
fides or there is inaction then there cannot be any justified
ground for condoning the delay even by imposing conditions.
It is observed that each application for condonation of delay
has to be decided within the framework laid down by this
Court. It is further observed that if courts start condoning
delay where no sufficient cause is made out by imposing
conditions then that would amount to violation of statutory
principles and showing utter disregard to legislature.
7.5 In the case of Pundlik Jalam Patil (supra). it is
observed by this Court that the court cannot enquire into
belated and stale claims on the ground of equity. Delay
defeats equity. The Courts help those who are vigilant and
"do not slumber over their rights".
8. Applying the law laid down by this Court in the
aforesaid decisions to the facts of the case on hand
and considering the averments in the application for
condonation of delay, we are of the opinion that as
such no explanation much less a sufficient or a
https://www.mhc.tn.gov.in/judis
CMP No.19074 of 2022
and AS.SR.No.109203 of 2022
and CMP.No.7447 of 2023
satisfactory explanation had been offered by
respondent Nos.1 and 2 herein - appellants before the
High Court for condonation of huge delay of 1011
days in preferring the Second Appeal. The High
Court is not at all justified in exercising its
discretion to condone such a huge delay. The
High Court has not exercised the discretion
judiciously. The reasoning given by the High
Court while condoning huge delay of 1011 days
is not germane. Therefore, the High Court has
erred in condoning the huge delay of 1011 days
and 2 herein - original defendants. Impugned
order passed by the High Court is unsustainable
both, on law as well as on facts.
9. In view of the above and for the reasons
stated above, the present Appeal is Allowed. The
impugned order dated 16.09.2021 passed by the
High Court condoning the delay of 1011 days in
preferring the Second Appeal by respondent Nos. 1
and 2 herein is hereby quashed and set aside.
Consequently. Second Appeal No.331 of 2021
preferred by respondent Nos.1 and 2 herein stands
dismissed on the ground of delay. The present
Appeal is accordingly Allowed. However, there shall
be no order as to costs.”
9. It is seen that the total sum payable by the petitioner comes to
Rs.35,43,406/-. Though the petitioner had earlier undertaken to deposit a sum of
Rs.10,00,000/- on 15.03.2023, till now, no amount has been deposited. Now, she
has expressed her inclination to deposit only a sum of Rs.13,00,000/- as against
https://www.mhc.tn.gov.in/judis
CMP No.19074 of 2022
and AS.SR.No.109203 of 2022
and CMP.No.7447 of 2023
Rs.35,43,406/-. We are not inclined to accept the above submission of the
petitioner, so as to condone the delay in view of the decision of the Apex Court
referred to supra and reject her plea in toto. The Court below can proceed with the
auction in E.P.No.22 of 2018.
Accordingly, C.M.P.No.19074 of 2022 filed to condone the delay is
dismissed and as a sequel, the Appeal Suit in SR Stage is rejected. Consequently,
C.M.P.No.7447 of 2023 filed for substitution of service is also dismissed. No costs.
(S.V.N.J.,) (R.K.M.J.,)
30.03.2023
Speaking Order: Yes / No
pvs
S.VAIDYANATHAN, J
and
https://www.mhc.tn.gov.in/judis
CMP No.19074 of 2022
and AS.SR.No.109203 of 2022
and CMP.No.7447 of 2023
R.KALAIMATHI , J
pvs
CMP No.19074 of 2022
and AS.SR.No.109203 of 2022
and CMP.No.7447 of 2023
30.03.2023
https://www.mhc.tn.gov.in/judis
