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IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.T. ASHA, J.
The Commissioner, Coimbatore City Municipal Corporation, Coimbatore - Petitioner
Versus
B. Kulasekar & Others - Respondents
C.M.P. Nos. 18780 & 20306 of 2017 & S.A.S.R. Nos. 73847 & 73852 of 2017
Decided On : 26-02-2019
Land Acquisition Act,1894 Section 38 - Societies Registration Act, 1860 - Challenge – Suit for peaceful possession and enjoyment of property - Suit after contest was decreed and both decrees were challenged by appellants herein by filing and which are subject matter of respectively - Appeals were filed before Additional Subordinate Judge Coimbatore who by Judgment and Decree was pleased to dismiss appeals - Appellant has challenged both Judgments and Decree by filing above SA.SRs - Considering fact that delay of over days had crept in appellants have filed and respectively - Reasons adduced for delay in both affidavits are same - Appellant corporation would contend that in year in accordance with Government order Corporations Jurisdiction was realigned and suit property which originally fell within Jurisdiction of North Zone was brought within Jurisdiction of Central Zone and in course of transfer entire file got misplaced - In addition to above between years there was no suit clerk and there was none to take care of legal files as well as taking care of public spaces - It was only when appellant had received representation from both respondents seeking issue of a No Objection for name transfer of suit property and to remove name board of corporation from suit property in alignment with Judgment and Decree of Courts below that appellant corporation came to know about dismissal order that delay was neither wilful nor wanton but for reasons stated above - Whether areas that had been reserved for public purpose could be put to any other use other than that for public purpose by plaintiffs whether enormous delay of days should be condoned and whether appellant has come forward with a sufficient cause for condonation - Held, Where Honourable Supreme Court has that Court should generally be liberal in condoning delay and should be vigilant in coming down heavily in cases where there is a deliberate delay and delay is a form of dilatory tactics - Judgment in State of Nagaland Vs. Lipok Ao and others reported in has also been referred to where Honourable Supreme Court has stated if sufficient cause has been shown length of delay does not matter as Court should be concerned in rendering substantial Justice - Honourable Supreme Court has considered interpretation of sufficient Cause and has also that law of limitation is same for private citizen as for Government Authorities - However Honourable Supreme Court had that a different complexion is imparted to a case where public interest is shown to have suffered owing to acts of fraud or bad faith on part of their officers - Bench has also that certain amount of latitute in case of matters where Government is litigant should be adopted - As already submitted in instant case it is seen that property which has been reserved for public purpose has admittedly been put to some other use which gives raise to Substantial Question of Law - However delay on part of appellant Corporation should be borne in mind as also its reasons - It is seen that after decree in year first attempt that has been made by respondent/plaintiff was in year and as soon as letter for issue of a No objection had been given appellant corporation has woken up to fact that they have not challenged Judgment and Decree in respective first appeals and without any further delay application has been moved - However this Court is also conscious of fact that respondents who have obtained a decree in their favour should be compensated - Civil Miscellaneous Petitions Ordered
JUDGMENT :
(Prayer in C.M.P.No.18780 of 2017 : Civil Miscellaneous Petition is filed to condone the delay of 3047 days in filing the Second Appeal in S.A.S.R.No.73847 of 2017.
Prayer in C.M.P.No.20306 of 2017:Civil Miscellaneous Petition is filed to bring the second respondent on record as the legal representative of the first respondent in C.M.P.No.20306 of 2017 in S.A.S.R.No.73852 of 2017.)
The applications are filed for condoning the delay of 3047 days in filing the respective Second Appeals. The defendant is the appellant before this Court. Since the issue involved in both the appeals are similar a common order is being pronounced. The brief facts necessary to dispose of this application briefly alluding to the merits of the case are as follows:
2. The respondent in SA.SR.No.73847 of 2017 had filed O.S.No.1490 of 2003 and the respondent in SA.SR.73852 of 2017 had filed O.S.No.1488 of 2003 before the I Additional District Munsif, Coimbatore, for the following relief:
“Declaring that the plaintiff is the absolute owner of the suit property and passing a decree of consequential injunction restraining the defendant from any way disturbing the plaintiff's peaceful possession and enjoyment of the suit property.”
3. The suit after contest was decreed on 26.06.2007 and both the decrees were challenged by the appellants herein by filing A.S.No.114 of 2007 and 113 of 2007 which are the subject matter of SA.SR.No.73847 and 73852 of 2017 respectively. The appeals were filed before the III Additional Subordinate Judge, Coimbatore, who by Judgment and Decree dated 23.01.2009 was pleased to dismiss the appeals.
4. The appellant has challenged both the Judgments and Decree by filing the above SA.SR's . Considering the fact that the delay of over 3047 days had crept in, the appellants have filed C.M.P.No.18780 in SA.SR.No.73847 of 2017 and C.M.P.No.20306 of 2017 in SA.SR.No.73852 of 2017 respectively. The reasons adduced for the delay in both the affidavits are the same. The appellant corporation would contend that in the year 2008, in accordance with the Government order, the Corporation's Jurisdiction was realigned and the suit property which originally fell within the Jurisdiction of the North Zone was brought within the Jurisdiction of the Central Zone and in the course of the transfer the entire file got misplaced. In addition to the above, between the years 2009 to 2010 there was no suit clerk and there was none to take care of the legal files as well as taking care of the public spaces.
5. It was only on 11.08.2016, when the appellant had received the representation from both the respondents seeking the issue of a No Objection for name transfer of the suit property and to remove the name board of the corporation from the suit property in alignment with the Judgment and Decree of the Courts below that the appellant corporation came to know about the dismissal order; that the delay was neither wilful nor wanton but for the reasons stated above.
6. The counter affidavit has been filed in C.M.P.No.18780 of 2017 wherein the respondent would contend that the reasons given in the affidavit for condoning the delay of 8 years 4 months 7 days lacks bonafides and sufficient cause has not been shown for condoning the delay. The respondent would contend that the appellant had engaged a counsel and therefore papers could have been obtained from him since he had appeared for them both in the suit as well as in the appeal and therefore there was no question of the appellant Corporation not being able to obtain copies of the papers.
7. The respondent would contend that the reasons narrated in the affidavit is nothing but a concocted story and there is no explanation from the year 2010 as to what steps were taken by the appellant to prosecute the case to file an appeal. The respondent has referred to various Judgments of the Court relating to the delay of the state in the counter.
8. They have also quoted Judgments where the Courts had laid down guidelines as r
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