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High Court of Judicature at Madras
G. RAJASURIA, J.
V.K. Ramamoorthy
Versus
M.K. Chandrabai & Others
S.A.No. 981 of 2012 & M.P.Nos. 1 & 2 of 2013
Decided on : 23-04-2013
Limitation Act - Section 3 - The court has the power to condone a delay in filing an appeal. Code of Civil Procedure - Section 94(e), Section 144, Order 39 Rule 7 and 10, Section 151 - The court has the power to order a party to deposit compensation received pendente lite in the court. The court can pass interim orders to bring the compensation amount into court. The court should consider the interest of justice and avoid multiplicity of proceedings. The court should decide the appeal on merits and give an opportunity to the appellant to file an application to condone the delay.
Fact of the Case:
The plaintiffs filed a suit seeking declaration of ownership and permanent injunction. The trial court decreed the suit, but the first appellate court dismissed the appeal filed by the defendant on the ground of limitation. The appellant filed a second appeal, challenging the dismissal of the appeal. The court allowed the second appeal and remitted the case back to the first appellate court, giving the appellant an opportunity to file an application to condone the three days' delay in filing the appeal. The court also directed the appellant to deposit a sum of Rs.17,00,000/- in the first appellate court. The appeal should be disposed of within three months from the date of condoning the delay. The court also directed the disposal of the delay application within one month from the date of filing.
Finding of the Court:
The court considered the arguments of both parties and observed that the delay of three days' in filing the appeal could be condoned. The court emphasized the importance of giving an opportunity to the appellant to file an application to condone the delay and to have the appeal decided on merits. The court also addressed the issue of the appellant receiving compensation from the land acquisition authorities and ordered the appellant to deposit a portion of the compensation amount in the first appellate court. The court relied on various provisions of the Code of Civil Procedure to support its decision.
Ratio Decidendi: The court held that a delay of three days' in filing an appeal could be condoned and that the appellant should be given an opportunity to file an application to condone the delay. The court also held that the court has the power to order a party to deposit compensation received pendente lite in the court. The court emphasized the importance of deciding the appeal on merits and avoiding multiplicity of proceedings.
Result: The second appeal is allowed and the case is remitted back to the first appellate court. The appellant is given an opportunity to file an application to condone the three days' delay in filing the appeal. The appellant is also directed to deposit a sum of Rs.17,00,000/- in the first appellate court. The appeal should be disposed of within three months from the date of condoning the delay. The delay application should be disposed of within one month from the date of filing. The connected miscellaneous petitions are closed.
1. This second appeal is focussed by D2, animadverting upon the judgment and decree dated 28.03.2012 passed by the learned District Judge, Tiruvallur in A.S.No.3 of 2011 in dismissing the appeal as barred by limitation and thereby confirming the common judgment and decree dated 22.01.2010 passed by the learned Subordinate Judge, Poonamallee in O.S.No.203 of 1996.
2. The parties are referred to here under according to their litigative status and ranking before the trial Court.
3. The germane facts, absolutely necessary for the disposal of this second appeal as well as the two miscellaneous petitions would run thus:
(a) As many as eight plaintiffs, filed the suit seeking the following reliefs:
- for a declaration that the plaintiffs 1 to 7 are the owners of the suit property situate at 82, Maduraivoil village, Chengai MGR District comprised in S.No.13/1A1 13/1A2, 13/1B, 13/2 and 13/3 measuring an extent of 26.50 acres or thereabout more fully described in the schedule here under and consequentially
- for a permanent injunction restraining the defendants their men, agents servants or any person or persons from interfering with the plaintiffs peaceful possession and enjoyment of the suit property perpetually more fully described in the plaint schedule here under:
- grant such further or other reliefs.
-cost of the suit.
(extracted as such)
(b) D1 filed the written statement, which was adopted by D2, who is the sole appellant in this second appeal.
(c) The trial court framed the issues.
(d) Up went the trial, during which, on the plaintiff's side P.Ws.1 and 2 were examined; and Exs.A1 to A12 were marked; on the defendants' side, D.W.1 was examined and Exs.B1 to B49 were marked.
4. Ultimately the trial Court decreed the suit; as against which appeal was filed by D2; D1 died pendente lite. The first appellate court after hearing both sides, dismissed the appeal on the sole ground that the appeal was filed without seeking to get the delay of three days' condoned.
5. Being aggrieved by and dissatisfied with the same, the appellant herein-V.K.Ramamoorthy filed earlier CRP (NPD) No.2046 of 2012 before this court and that CRP was disposed of vide order dated 31.07.2012 giving him opportunity to file second appeal as against the judgment and decree of the first appeal. As such, this second appeal has been focussed by D2 setting out various grounds and also suggesting the following substantial questions of law:
1. Whether the lower appellate court was right in dismissing the appeal as barred by limitation?
2. Whether the appellant was not entitled to computation of period of limitation on the basis of decree obtained in respect of the first application for copy of decree, more so since the same had been with an endorsement to that effect?
3. Whether the lower appellate court had not erred in holding that the benefit of computation of limitation with respect to decree obtained first cannot be granted in the absence of all application, more so since the lower appellate court had directed registering the appeal which would amount to implied grant of permission/leave?
4. Whether the lower appellate court had not erred in denying the benefit of exclusion of intervening weekend holidays in filing the copy application for computation of period of limitation?
5. Without prejudice to the above, whether the lower appellate court had not erred in defacing the appeal without granting the appellant an opportunity of filing appropriate application for condonation of the delay?
6. Whether the lower appellate court had not erred in not condoning the delay if any, without insisting on an application in view of the facts and of the case?
7. Whether the lower appellate court after holding that there was a delay in presentation of the appeal had not erred in not returning the appeal papers for proper presentation?
8. Whether the lower appellate court had jurisdiction and power to entertain an application to deface an appeal after it had b
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