The non-filing of an independent appeal as against a cross appeal arising from a single suit does not operate as res judicata, and lack of proper legal advice cannot be a ground to condone a significant delay in filing an appeal.

JUDGMENT

(Prayer in C.M.P(MD)No.8931 of 2021: Civil Miscellaneous Petition is filed under Order 41, Rule 3(A) r/w Order 42, Rule 2 of the Civil Procedure Code, to condone the delay of 5002 days in preferring the above Second Appeal against the order, dated 04.07.2005 made by the Sub Court, Aruppukottai in Cross Objection in A.S.No.42 of 2003.

S.A(MD)SR.No.53848 of 2021: Second Appeal is filed under Section 100 of the Civil Procedure Code, to set aside the judgment and decree of the District Munsif, Aruppukottai in O.S.No.362 of 1999, dated 14.01.2003 and the judgment and decree of the Sub Court, Aruppukottai in Cross objection filed the respondent herein in A.S.No.42 of 2003, dated 04.07.2005 and allow this appeal and decree the suit as prayed for.)

1. The present application has been filed in S.A.(MD)SR.No.53848 of 2021 to condone the delay of 5002 days in filing the Second Appeal.

2. The present appellant in the Second Appeal was the plaintiff in O.S.No.362 of 1999 before the District Munsif Court, Aruppukottai. The plaintiff has prayed for the relief of declaration of title and permanent injunction. The plaintiff has further prayed for permanent injunction, declaration, mandatory injunction and recovery of possession with regard to second schedule property. The suit was partly decreed by the trial Court with regard to first schedule property and dismissed in entirety with regard to second schedule property.

3. As against the judgment and decree, the plaintiff filed A.S.No.42 of 2003 before the Sub Court, Aruppukottai with regard to the dis-allowed portion. The defendant filed cross appeal with regard to the decreed portion. Both the appeal and the cross appeal were heard together. The cross appeal filed by the defendant was allowed and the decree granted in favour the plaintiff with regard to the first schedule property was reversed. The suit was dismissed with regard to the entire first schedule property. By way of a separate decree in first appeal, the learned Subordinate Judge had dismissed the first appeal, confirming the rejection of the prayers sought for by the plaintiff before the trial Court. In the result, the suit filed by the plaintiff has been dismissed in entirety by the decree of the First Appellate Court.

4. The plaintiff had filed S.A(MD)No.1031 of 2007 as against the judgment and decree in A.S.No.42 of 2003. However, no separate second appeal was preferred as against the decree passed by the First Appellate Court in the cross appeal filed by the defendants.

5. When S.A(MD)No.1031 of 2007 came up for a final hearing, the learned Counsel for the respondent in the second appeal has pointed out that in view of non filing of a separate second appeal, as against the decree in cross appeal, the present Second Appeal is not maintainable. After the said technical objection was raised by the learned Counsel for the respondent, the plaintiff has chosen to file the present second appeal on 25.10.2021 as against the decree passed by the First Appellate Court in cross appeal.

6. Since the second appeal was filed beyond the period of limitation, the appellant has filed C.M.P(MD)No.8931 of 2021 to condone the delay of 5002 days in filing the above second appeal. The petitioner in his affidavit has contended that his learned Counsel has not advised to file a separate second appeal as against the decree in the cross appeal. Since the S.A(MD)No.1031 of 2007 was already admitted (filed against A.S.No.49 of 2003), he was under the impression that the pending second appeal also covers the decree passed in cross appeal by the First Appellate Court. Only in view of this wrong impression, no separate second appeal was filed as against the decree in cross appeal. According to the petitioner, the non filing of the second appeal in time is neither wilful nor wanton but only because of misunderstanding of law. Hence, he prayed for condoning the delay of 5002 days in filing the second appeal.

7. The respondent has filed a detailed counter conte