Madras High Court
The Secretary To Government vs N.Chinnasamy on 18 October, 2024
Author: D.Krishnakumar
Bench: D.Krishnakumar
C.M.P.No.21886 of 2024 in W.A.SR.No.129296 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.10.2024
CORAM:
THE HON'BLE MR.JUSTICE D.KRISHNAKUMAR
AND
THE HON'BLE MR.JUSTICE P.B.BALAJI
C.M.P.No.21886 of 2024
in
W.A.SR.No.129296 of 2024
1. The Secretary to Government,
Commercial Taxes and Registration Department,
Fort St.George, Chennai-600 009.
2. The Inspector General of Registration,
Kamarajar Salai,
Chennai-600 028. ... Appellants/Respondents
-vs-
N.Chinnasamy ... Respondent/Petitioner
Prayer: C.M.P.No.21886 of 2024 is filed to condone the delay of 392 days in filing the
above appeal against the order dated 25.07.2023 made in W.P.No.13504 of 2013.
Prayer: W.A.SR.No.129296 of 2024 is filed under Clause 15 of Letters Patent, seeking
to allow the Writ Appeal and set aside the order dated 25.07.2023 made in
W.P.No.13504 of 2013 and allow the above Writ Appeal.
For Appellants : Mr.B.Vijay
Addl. Govt. Pleader
For Respondent : Mr.S.Baskaran
*****
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C.M.P.No.21886 of 2024 in W.A.SR.No.129296 of 2024
ORDER
(By D.KRISHNAKUMAR,J.,)
This Civil Miscellaneous Petition has been filed to condone the delay of
392 days in filing the above appeal against the order dated 25.07.2023 made in
W.P.No.13504 of 2013.
2. The petitioners/appellants have come forward with a prayer to condone
the delay of 392 days, by giving the reasons in Paragraph Nos.5 & 6 of the affidavit,
which are extracted below:-
"5. It is submitted that order was passed by the Hon'ble High Court
of Madras on 25.07.2023 and the order was sent by the respondent herein
to the office of the Inspector General of Registration the 2nd Petitioner /
Appellant herein on 31.08.2023 and the original order was received on
13.10.2023. On receipt of the same, the order copy was sent to the 1st
Petitioner / Appellant herein on 18.11.2023. After necessary
deliberations the 2nd Petitioner / Appellant herein has taken immediate
action with regard to the implementation of the order passed by the
Hon'ble High Court. Since the order was against law, Appellant decided
to file an appeal.
6. It is submitted that the appeal was prepared after discussion and
verifying the records. Hence, there was a delay of 392 days in filing the
present writ appeal. The delay is neither wilful nor wanton but due to
above and bonafide administrative grounds. If the delay is not condoned,
the Petitioners / Appellants herein will be put into great hardship.”
3. The reasons adduced by the petitioners are not convincing and
unsustainable, as the affidavit to condone the delay itself is bereft of particulars and the
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C.M.P.No.21886 of 2024 in W.A.SR.No.129296 of 2024
petitioners have not taken utmost care in drafting the affidavit. 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 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
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C.M.P.No.21886 of 2024 in W.A.SR.No.129296 of 2024
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.”
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:
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C.M.P.No.21886 of 2024 in W.A.SR.No.129296 of 2024
“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]”
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
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C.M.P.No.21886 of 2024 in W.A.SR.No.129296 of 2024
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 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 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
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C.M.P.No.21886 of 2024 in W.A.SR.No.129296 of 2024
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 on par 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.
8. 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 delay
of 392 days in filing the writ appeal.
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C.M.P.No.21886 of 2024 in W.A.SR.No.129296 of 2024
D.KRISHNAKUMAR,J.,
AND
P.B.BALAJI,J.,
ar
9. For the foregoing reasons, C.M.P.No.21886 of 2024 is dismissed.
Consequently, W.A.SR.No.129296 of 2024 is rejected. No costs.
[D.K.K., J.,] [P.B.B.,J.,]
18.10.2024
Index: Yes / No
Internet: Yes / No
Speaking Order/Non Speaking Order
ar
C.M.P.No.21886 of 2024 in
https://www.mhc.tn.gov.in/judis
