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2019 Supreme(Mad) 2657
IN THE HIGH COURT OF JUDICATURE AT MADRAS
S.M. SUBRAMANIAM, J.
M.V. Gopal (died) & Others - Appellants
Versus
N. Rajappan - Respondent
C.M.P.Nos. 8358 & 8359 of 2018 in AS.SR.No. 32087 of 2018
Decided On : 09-12-2019
For the Appellants :C. Prabakaran, Advocate
For the Respondent:N.E.A. Dinesh, Advocate
The court emphasized the need for candid and convincing reasons for condoning enormous delay and concluded that the delay could not be condoned as it would cause prejudice to the decree holder.
Headnote:
CIVIL PROCEDURE CODE - DELAY CONDONATION - Section 96 - [C.M.P.No.8358 of 2018, Order XLI Rule 3(4) of C.P.C.] - [C.M.P.No.8359 of 2018, Section 151 r/w Order XLI Rule 5 of C.P.C.] - [AS.SR.No.32087 of 2018, Section 96 of Civil Procedure Code] - The court dismissed the Civil Miscellaneous Petition filed to condone the delay of 958 days in filing the appeal suit against the judgment and decree dated 01.06.2015 passed in O.S.No.8/2014 on the file of the Principal District Judge, Krishnagiri.
Fact of the Case:
The petitioner filed a Civil Miscellaneous Petition to condone the delay of 958 days in filing the appeal suit against the judgment and decree dated 01.06.2015 passed in O.S.No.8/2014 on the file of the Principal District Judge, Krishnagiri. The petitioner claimed that the delay was due to his illness and various health issues, which led to his bedridden state for a long time.
Finding of the Court:
The court found that the reasons furnished by the petitioner for the enormous delay of 958 days were insufficient and not candid. The court concluded that the delay could not be condoned as it would cause prejudice to the decree holder, as the decree had already been executed and the delivery of possession was completed.
Issues: The main issue was whether the delay of 958 days in filing the appeal suit could be condoned by the court.
Ratio Decidendi: The court held that the reasons furnished for the delay were neither cogent nor convincing, and the petitioner failed to establish that the huge delay was due to genuine reasons. The court emphasized the need for candid and convincing reasons for condoning such enormous delay and concluded that the delay could not be condoned as it would cause prejudice to the decree holder.
Final Decision: The Civil Miscellaneous Petition in C.M.P.No.8358 of 2018 was dismissed, and consequently, the A.S.SR.No.32087 of 2019 was rejected at the SR stage itself. In view of the orders passed in C.M.P.No.8358 of 2018, the stay petition in C.M.P.No.8359 of 2018 was also dismissed. No costs were awarded.
JUDGMENT :
(Prayer: C.M.P.No.8358 of 2018 is filed under Order XLI Rule 3(4) of C.P.C., to condone the delay of 958 days in filing the above appeal against the decree and judgment dated 01.06.2015 made in O.S.No.8 of 2014 on the file of the Principal District Judge, Krishnagiri.
C.M.P.No.8359 of 2018 is filed under Section 151 r/w Order XLI Rule 5 of C.P.C., to stay all further proceedings in E.P.No.15 of 2017 in O.S.No.8 of 2014 on the file of the Principal District Judge, Krishnagiri pending disposal of the application to condone the delay in filing of the above regular appeal.
AS.SR.No.32087 of 2018 is filed under Section 96 of Civil Procedure Code, against the Judgment and Decree dated 01.06.2015 passed by the Principal District Court in O.S.No.8 of 2014.)
The Civil Miscellaneous Petition in CMP.No.8358 of 2018 is filed to condone the enormous delay of 958 days (3 years) in filing the appeal suit against the judgment and decree dated 01.06.2015 passed in O.S.No.8/2014 on the file of the Principal District Judge, Krishnagiri.
2. The petitioner states that the respondent instituted a suit in O.S.No.8/2014, seeking the relief of specific performance. It is admitted by the petitioner that he had engaged a counsel and filed a written statement as a result. The learned counsel also followed the case. However, an exparte decree was passed on 01.06.2015 on account of the non appearance of the parties. Thereafter, the petitioner filed an application to set aside the exparte decree on 22.06.2015 and the same was also allowed on payment of cost on 11.09.2015. Subsequently, due to the non payment of cost, the said application was also dismissed on 25.09.2015 in I.A.No.202/2015. The petitioner states that the factum of non-payment of cost and the dismissal of the application was not informed to him and meantime, he suffered an illness on account of various problems and he was paralysed. He was concentrating on his health issues and was bedridden for long time. He has taken treatments in various hospitals. Subsequently, the respondent has filed R.E.P.No.15 of 2017 for execution of the sale deed pursuant to the exparte decree passed in O.S.No.8/2014. The petitioner requested his learned counsel to take appropriate steps to save his property. However, an application was filed on 10.04.2018, after a lapse of 3 years from the passing of decree for the purpose of obtaining certified copy of the decree and judgment and thereafter, he filed a suit before this Court. Thus, there is a delay of 958 days in filing the appeal suit before this Court.
3. The learned counsel appearing on behalf of the respondent disputed the contentions by stating that the delay is willful and therefore, cannot be condoned. The huge delay of about 3 years cannot be condoned without assigning any valid reason.
4. The respondent states that the petitioner filed a copy application for certificate copies on 10.04.2018 and the copies were delivered to him on 11.04.2018. Pursuant to the execution petition, the sale deed was already executed and registered in favour of the decree holder and the Execution Petition was posted for recording delivery of possession. Thus, the petitioner has filed the present appeal to stall the Execution Petition, which has been posted for delivery of possession and the Execution Petition also terminated.
5. The learned counsel for the respondent reiterated that the petitioner has not pursued his remedy within a reasonable period of time and now after a lapse of more than 3 years, the appeal suit is filed and in the event of condoning such an enormous delay, the rights of the respondent would be prejudiced. It is not as if the respondent can wait for an enormous period for the purpose of execution of the decree already passed in the year 2015. Therefore, such a huge delay cannot be condoned and consequently, the petition is liable to be dismissed. In order to condone such a huge delay of about 3 years, the Courts must record reasons. The power of discret
