Madras High Court
The Assistant Executive Engineer (O & M) vs P.Sandanamary on 17 October, 2024
Author: D.Krishnakumar
Bench: D.Krishnakumar
CMP No.15941 of 2024 in WA SR No.95341 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.10.2024
CORAM:
THE HON'BLE MR.JUSTICE D.KRISHNAKUMAR
AND
THE HON'BLE MR.JUSTICE P.B.BALAJI
C.M.P.No.15941 of 2024
in
W.A.SR.No. 95341 of 2024
The Assistant Executive Engineer (O & M),
Maduravoyal, Chennai Electricity Distribution Circle/West,
Tamil Nadu Electricity Generation & Distribution Board,
Chennai-95. ... Petitioner/Appellant
-vs-
1. P.Sandanamary
2. P.Dhanamary
3. P.Elizebeth Rani
4. P.Josepin Rosay
5. P.Roselin
6. Lourduammal @ Arulmary
7. Rosali
8. J.Pushpanathan ... Respondents/Respondents
Page 1 of 12
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CMP No.15941 of 2024 in WA SR No.95341 of 2024
Prayer: C.M.P.No.15941 of 2024 is filed to condone the delay of 637 days
in filing the above appeal against the order dated 11.07.2022 made in
W.P.No.16262 of 2013.
Prayer: W.A.SR.No.95341 of 2024 is filed under Clause 15 of Letters
Patent, seeking to allow the Writ Appeal and set aside the order dated
11.07.2022 made in W.P.No.16262 of 2013.
For the Petitioner/ : Mr.P.Kumaresan,
appellant Additional Advocate General
Assisted by
Mr.L.Jaivenkatesh
For the Respondents/ : Mr.A.Ashwin Kumar
Respondents
ORDER
(By D.Krishnakumar, J.)
This Civil Miscellaneous Petition has been filed to condone the delay
of 637 days in filing the above appeal against the order dated 11.07.2022
made in W.P.No.16262 of 2013.
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CMP No.15941 of 2024 in WA SR No.95341 of 2024
3. The petitioner/appellant has come forward with a prayer to condone
the delay of 637 days, by giving the reasons in Paragraph No.4 and 5 of the
affidavit, which is extracted below:-
"4. I humbly submit that, the order was received on
07.09.2022 and the legal opinion to file the appeal was
forwarded to the legal cell of the department on 23.09.2022.
The opinion to file the appeal was forwarded as mail to may
office by the legal cell on 17.10.2022, but due to the
administrative set backs, we failed to note the same.
5. I humbly submit that, the opinion to prefer appeal
came to our knowledge when I visited the Legal Cell
department.”
4. In the affidavit, the petitioner has not disclosed any satisfactory or
justified reasons to condone such enormous delay. When the petitioner is
intended to file an appeal and got the legal opinion on 07.09.2022 itself, he
should be vigilant in prosecuting the case, within the reasonable time. In
such circumstances, we are not inclined to show any leniency on the
petitioner department to consider their case.
5. At this juncture, it is worthwhile to refer that, the Apex Court,
while dealing with the issue of delay in extenso in the case of
N.Balakrishnan V. M.Krishnamurthy reported in (1998) 7 SCC observed
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CMP No.15941 of 2024 in WA SR No.95341 of 2024
as under:
“9. It is axiomatic that condonation of delay is a matter of
discretion of the court Section 5 of the Limitation Act does not
say that such discretion can be exercised only if the delay is
within a certain limit. Length of delay is no matter, acceptability
of the explanation is the only criterion. Sometimes delay of the
shortest range may be uncondonable due to want of acceptable
explanation whereas in certain other cases delay of very long
range can be condoned as the explanation thereof is
satisfactory. Once the court accepts the explanation as sufficient
it is the result of positive exercise of discretion and normally the
superior court should not disturb such finding, much less in
reversional jurisdiction, unless the exercise of discretion was on
whole untenable grounds or arbitrary or perverse. But it is a
different matter when the first cut refuses to condone the delay.
In such cases, the superior cut would be free to consider the
cause shown for the delay afresh and it is open to such superior
court to come to its own finding even untrammeled by the
conclusion of the lower court.
10.The reason for such a different stance is thus:
The primary function of a court is to adjudicate the
dispute between the parties and to advance substantial justice.
Time limit fixed for approaching the court in different situations
in not because on the expiry of such time a bad cause would
transform into a good cause.
11.Rules of limitation are not meant to destroy the right
of parties. They are meant to see that parties do not resort to
dilatory tactics, but seek their remedy promptly. the object of
providing a legal remedy is to repair the damage caused by
reason of legal injury. Law of limitation fixes a life-span for
such legal remedy for the redress of the legal injury so suffered.
Time is precious and the wasted time would never revisit.
During efflux of time newer causes would sprout up
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CMP No.15941 of 2024 in WA SR No.95341 of 2024
necessitating newer persons to seek legal remedy by
approaching the courts. So a life span must be fixed for each
remedy. Unending period for launching the remedy may lead to
unending uncertainty and consequential anarchy. Law of
limitation is thus founded on public policy. It is enshrined in the
maxim Interest reipublicae up sit finis litium (it is for the
general welfare that a period be putt to litigation). Rules of
limitation are not meant to destroy the right of the parties. They
are meant to see that parties do not resort to dilatory tactics but
seek their remedy promptly. The idea is that every legal remedy
must be kept alive for a legislatively fixed period of time.
12. A court knows that refusal to condone delay would
result foreclosing a suitor from putting forth his cause. There is
no presumption that delay in approaching the court is always
deliberate. This Court has held that the words "sufficient cause"
under Section 5 of the Limitation Act should receive a liberal
construction so as to advance substantial justice vide
Shakuntala Devi Jain Vs. Kuntal Kumari [AIR 1969 SC 575]
and State of West Bengal Vs. The Administrator, Howrah
Municipality [AIR 1972 SC 749].
13. It must be remembered that in every case of delay
there can be some lapse on the part of the litigant concerned.
That alone is not enough to turn down his plea and to shut the
door against him. If the explanation does not smack of mala
fides or it is not put forth as part of a dilatory strategy the court
must show utmost consideration to the suitor. But when there is
reasonable ground to think that the delay was occasioned by the
party deliberately to gain time then the court should lean
against acceptance of the explanation. While condoning delay
the Could should not forget the opposite party altogether. It
must be borne in mind that he is a looser and he too would have
incurred quiet a large litigation expenses. It would be a salutary
guideline that when courts condone the delay due to laches on
the part of the applicant the court shall compensate the opposite
party for his loss.”
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CMP No.15941 of 2024 in WA SR No.95341 of 2024
6. The Apex Court in Esha Bhattacharjee v. Raghunathpur Nafar
Academy, (2013) 12 SCC 649, after considering a series of earlier decisions,
summarised the principles to be followed while considering an application
for condonation of delay. The relevant portion of the said decision is
extracted hereunder:
“21.8. (viii) There is a distinction between inordinate
delay and a delay of short duration or few days, for to the
former doctrine of prejudice is attracted whereas to the latter it
may not be attracted. That apart, the first one warrants strict
approach whereas the second calls for a liberal delineation.
21.9. (ix) The conduct, behaviour and attitude of a party
relating to its inaction or negligence are relevant factors to be
taken into consideration. It is so as the fundamental principle is
that the courts are required to weigh the scale of balance of
justice in respect of both parties and the said principle cannot be
given a total go by in the name of liberal approach.
22.1.(a) An application for condonation of delay should
be drafted with careful concern and not in a haphazard manner
harbouring the notion that the courts are required to condone
delay on the bedrock of the principle that adjudication of a lis
on merits is seminal to justice dispensation system.
22.2. (b) An application for condonation of delay should
not be dealt with in a routine manner on the base of individual
philosophy which is basically subjective.” [emphasis supplied]”
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CMP No.15941 of 2024 in WA SR No.95341 of 2024
7. Reiterating the aforesaid principles, the Supreme Court in yet
another case in H.Dohil Constructions Company Private Limited vs Nahar
Exports Limited and another reported in (2015) 1 Supreme Court Cases
680, has categorically held as follows:
“23. When we apply those principles to the case on hand,
it has to be stated that the failure of the Respondents in not
showing due diligence in filing of the appeals and the enormous
time taken in the refiling can only be construed, in the absence
of any valid explanation, as gross negligence and lacks in
bonafides as displayed on the part of the Respondents. Further,
when the Respondents have not come forward with proper
details as regards the date when the papers were returned for
refiling, the non-furnishing of satisfactory reasons for not refiling
of papers in time and the failure to pay the Court fee at the time
of the filing of appeal papers on 06.09.2007, the reasons which
prevented the Respondents from not paying the Court fee along
with the appeal papers and the failure to furnish the details as to
who was their counsel who was previously entrusted with the
filing of the appeals cumulatively considered, disclose that there
was total lack of bonafides in its approach. It also requires to be
stated that in the case on hand, not refiling the appeal papers
within the time CIVIL APPEAL NOS. OF 2014 22 of 25 (@
SLP (C) Nos.10811-10812 of 2014 & Connected matters
prescribed and by allowing the delay to the extent of nearly 1727
days, definitely calls for a stringent scrutiny and cannot be
accepted as having been explained without proper reasons. As
has been laid down by this Court, Courts are required to weigh
the scale of balance of justice in respect of both parties and the
same principle cannot be given a go-by under the guise of liberal
approach even if it pertains to refiling. The filing of an
application for condoning the delay of 1727 days in the matter of
refiling without disclosing reasons, much less satisfactory
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CMP No.15941 of 2024 in WA SR No.95341 of 2024
reasons only results in the Respondents not deserving any
indulgence by the Court in the matter of condonation of delay.
The Respondents had filed the suit for specific performance and
when the trial Court found that the claim for specific
performance based on the agreement was correct but exercised
its discretion not to grant the relief for specific performance but
grant only a payment of damages and the Respondents were
really keen to get the decree for specific performance by filing
the appeals, they should have shown utmost diligence and come
forward with justifiable reasons when an enormous delay of five
years was involved in getting its appeals registered”.
8. A Division Bench of this Court in the case of M/s.Ruskim sea
Foods Limited, Stafford Park 15, Teleford Shropshire TF33BB United
Kingdom rep. By their Power of Attorney Agent Mr.Abdur Rahman
No.42, Sindur Plaza Montieth Lane, Egmore, Chennai 600 008 vs. M/s
Evergreeen Sea Foods Pvt.,Ltd., rep. By its Managing Director,
Mr.T.Loganathan, No.29, Kummalammankoil Street, Tondiarpet,
Chennai 600 081 and others [C.M.P.Nos.21784 and 21785 of 2017 in
OSA No.SR79476 of 2017] decided on 15.02.2018, elaborately dealt with
the issue of condonation of delay in terms of various judgments of the
Supreme Court, was pleased to hold as follows:
“36. The Petitioner has come with unclean hands and the Hon'ble
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CMP No.15941 of 2024 in WA SR No.95341 of 2024
Supreme Court in the decisions, which were cited by the Petitioner,
had categorically held that the 'length of delay is not a matter, but the
acceptance of explanation is only criteria and length of delay may be
long, but if there is justification, long delay can also condoned'. If
there is a short delay and the explanation is not satisfactory and if it is
on account of smack or malafide or on account of dilatory strategy,
this Court cannot help the persons, who come before this Court to
condone the delay and protract the proceedings.”
9. If the present case on hand is analyzed in line with the judgments of
the Supreme Court as well as this Court, it is obvious that even if the delay is
long, the delay can be condoned, provided it is supported by sufficient
reasons and justifications to exercise the discretion of the Court. It is well-
settled proposition of law that condonation of delay is a matter of discretion
of the court. What the court has to consider is not the length of delay, but
the acceptability of the explanation.
10. In the case on hand, the asseveration as contained in the affidavit
is only a self-serving statement and does not impel us to consider the same
as a sufficient cause for condoning such inordinate delay. No reasons, much
less valid and cogent reasons, are assigned to condone the delay. Hence, we
see no valid ground to condone the huge delay of 637 days in filing the writ
appeal.
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CMP No.15941 of 2024 in WA SR No.95341 of 2024
11. For the foregoing reasons, C.M.P.No.21969 of 2024 is dismissed.
Consequently, W.A.SR.No.119846 of 2024 is rejected. No costs.
12. This order shall be communicated to the Chairman cum
Managing Director,of the Tamil Nadu Electricity Generation and
Distribution Board, 144, Anna Salai, Chennai-2 to give necessary
instructions to the officers concerned to file the appeal in an appropriate
case, in which the Board has decided to prefer an appeal, either before the
appellate forum or before this Court or before the District Court, within a
reasonable time. Further, in case any revenue loss is caused to the Board,
inview of the act of officers concerned in filing the appeals belatedly,
necessary legal action also shall be taken against them for recovering that
revenue loss.
[D.K.K., J.,] [P.B.B.,J.,]
17.10.2024
Index: Yes / No
Internet: Yes / No
mst
Note to Registry to communicate this order
https://www.mhc.tn.gov.in/judis
CMP No.15941 of 2024 in WA SR No.95341 of 2024
To
The Chairman cum Managing Director,
Tamil Nadu Electricity Generation and
Distribution Board,
No.144, Anna Salai, Chennai-2
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CMP No.15941 of 2024 in WA SR No.95341 of 2024
D.KRISHNAKUMAR,J.
AND
P.B.BALAJI,J.
mst
C.M.P.No.15941 of 2024 in W.A.SR.No.95341 of 2024
17.10.2024
https://www.mhc.tn.gov.in/judis
