Madras High Court
The Executive Officer vs Rank International School on 17 October, 2024
Author: D.Krishnakumar
Bench: D.Krishnakumar
CMP No.23350 of 2024 in WA SR No.136759 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.23350 of 2024
in
W.A.SR.No. 136759 of 2024
The Executive Officer,
Ariyappampalayam Town Panchayat,
Ariayappampalayam Post,
Sathyamangalam Taluk, Erode District. ... Petitioner
-vs-
Rank International School,
rep. by its Correspondent,
Ariyappampalayam Town Panchayat,
Ariayappampalayam Post,
Sathyamangalam Taluk, Erode District. ... Respondent
Prayer: C.M.P.No.23350 of 2024 is filed to condone the delay of 1288 days
in filing the above appeal against the order dated 09.02.2021 made in
W.P.No.7754 of 2011
Page 1 of 10
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CMP No.23350 of 2024 in WA SR No.136759 of 2024
Prayer: W.A.SR.No.136759 of 2024 is filed under Clause 15 of Letters
Patent, seeking to allow the Writ Appeal and set aside the order dated
09.02.2021 made in W.P.No.7754 of 2011
For the Petitioner : Mr.S.J.Mohamed Sathik
ORDER
(By D.Krishnakumar, J.)
This Civil Miscellaneous Petition has been filed to condone the delay
of 1288 days in filing the above appeal against the order dated 09.02.2021
2. The petitioners/appellants have come forward with a prayer to
condone the delay of 1288 days, by giving the reasons as extracted below:-
" It is submitted that due to Covid-19 Lock Down and
Situation which is prevailed upto January 2022 we are
not able to proceed to file appeal within Limitation
period. Again we got urban local bodies election was
conducted upto March 2022. Then delay is due to
Administrative Transfers and Postings of Executive
Officer in our Town Panchayat and then followed by
Parliamentary Election, 2024. It is submitted that the
delay is neither willful nor wanton purely due to
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CMP No.23350 of 2024 in WA SR No.136759 of 2024
administrative reasons."
3. In the affidavit, the petitioners have not disclosed any satisfactory
or justified reasons to condone such enormous delay. 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 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
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CMP No.23350 of 2024 in WA SR No.136759 of 2024
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
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
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CMP No.23350 of 2024 in WA SR No.136759 of 2024
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.”
4. 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.
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CMP No.23350 of 2024 in WA SR No.136759 of 2024
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]”
5. 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
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CMP No.23350 of 2024 in WA SR No.136759 of 2024
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 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”.
6. 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
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CMP No.23350 of 2024 in WA SR No.136759 of 2024
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
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.”
7. 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
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CMP No.23350 of 2024 in WA SR No.136759 of 2024
delay, but the acceptability of the explanation.
8. In the case on hand, the writ court has passed the order on
09.02.2021 itself. However, they petitioner slept over the matter as
Kumbakarna for a period of more than three and half years and thereafter
work up and file the present writ petition on 10.10.2024, that too without
proper explanation for such inordinate delay. Further, 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 1288 days in filing the writ appeal.
9. For the foregoing reasons, C.M.P.No.23350 of 2024 is dismissed.
Consequently, W.A.SR.No.136759 of 2024 is rejected. No costs.
[D.K.K., J.,] [P.B.B.,J.,]
17.10.2024
Index: Yes / No
Internet: Yes / No
mst
https://www.mhc.tn.gov.in/judis
CMP No.23350 of 2024 in WA SR No.136759 of 2024
D.KRISHNAKUMAR,J.
AND
P.B.BALAJI,J.
mst
C.M.P.No.23350of 2024 in W.A.SR.No.136759 of 2024
17.10.2024
https://www.mhc.tn.gov.in/judis
