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IN THE HIGH COURT OF JUDICATURE AT MADRAS
RMT. TEEKAA RAMAN, J.
Uma Maheswari and Ors. – Petitioners
Versus
Naren Rajagopal and Ors. – Respondents
CMP No.12393 of 2022 and CMA Sr. No.82688 of 2022
Decided On : 10-03-2023
Limitation Act - Civil Procedure - Section 5 of the Limitation Act - Order 43 Rule 1 of Code of Civil Procedure - O.S.No.14 of 2014 - IA.No.2/2019 - Summary: The court dismissed the Civil Miscellaneous Petition filed under Section 5 of the Limitation Act to condone the delay of 908 days in filing the Civil Miscellaneous Appeal against the decreetal order passed in I.A.No.2/2019 in O.S.No.14/2014. The court found that the appellants had only intended to delay the proceedings and prevent the plaintiffs from enjoying the fruits of the decree. Consequently, the Civil Miscellaneous Appeal stands rejected at the SR stage itself.
Fact of the Case:
The appellants filed a Civil Miscellaneous Petition under Section 5 of the Limitation Act to condone the delay of 908 days in filing the Civil Miscellaneous Appeal against the decreetal order passed in I.A.No.2/2019 in O.S.No.14/2014. The respondents contended that it is a partition suit and the appellants had not cooperated during the trial, resulting in the setting aside of the appellants and the passing of the ex-parte decree.
Finding of the Court:
The court found that the appellants had only intended to drag on the proceedings, had not cooperated during the trial, and had committed default of 908 days in filing the appeal. The court was not satisfied with the reasons assigned by the appellants and dismissed the Civil Miscellaneous Petition. Consequently, the Civil Miscellaneous Appeal stands rejected at the SR stage itself.
Issues: Delay in filing the Civil Miscellaneous Appeal, lack of cooperation by the appellants during the trial, and the intention of the appellants to delay the proceedings and prevent the plaintiffs from enjoying the fruits of the decree.
Ratio Decidendi: The court's decision was influenced by the appellants' lack of cooperation during the trial, their intention to delay the proceedings, and the absence of sufficient cause for the delay in filing the appeal. The court found that the appellants' actions were a clear attempt to prevent the plaintiffs from enjoying the fruits of the decree.
Final Decision: The Civil Miscellaneous Petition was dismissed, and consequently, the Civil Miscellaneous Appeal stands rejected at the SR stage itself. The trial Court was directed to dispose of the suit in O.S.No.14 of 2014 within a period of twelve weeks from the date of receipt of the order.
ORDER :
(Prayer in CMP No.12393 of 2022: This Civil Miscellaneous Petition is filed under Section 5 of the Limitation Act, praying to condone the delay of 908 days in filing the CMA against the order made in IA.No.2 of 2019 in O.S.No.14 of 2014 dated 08.11.2019 on the file of the District Court, Nagapattinam.)
(Prayer in CMA Sr.No.82688 of 2022 : This Civil Miscellaneous Appeal is filed under Order 43 Rule 1 of Code of Civil Procedure, against the decreetal order passed in I.A.No.2/2019 in O.S.No.14/2014 dated 08.11.2019 on the file of the District Court, Nagapattinam.)
This Civil Miscellaneous Petition is filed under Section 5 of the Limitation Act, to condone the delay of 908 days in filing the Civil Miscellaneous Appeal, against the decreetal order passed in I.A.No.2/2019 in O.S.No.14/2014 dated 08.11.2019 on the file of the District Court, Nagapattinam.
2. The defendants have preferred this appeal. As the appeal is out of time, they have filed this petition, under Section 5 of the Limitation Act, to condone the delay of 908 days in preferring the appeal.
3. The learned counsel for the petitioners/appellants/defendants would contend that since their earlier counsel before the lower court had died and due to the covid-19 pandemic, there occasioned a delay and hence, prays for condoning the delay.
4. Respondents/Plaintiffs have filed counter affidavit
5. The learned counsel for the respondents/plaintiffs would contend that it is a partition suit. There was a mediation but mediation failed. Subsequently, during the trial, there was another mediation. However, the defendants/appellants have not cooperated and the case has been tried. They have not cross examined PW1 for more number of occasion, resulting in setting them exparte and their advocate informed ‘no instructions’. Subsequently preliminary decree was passed. Also filed final decree proceedings and when the matter is posted again for final decree proceedings, they have filed the petition to set aside the exparte decree with a delay of 298 days in I.A.Nos.1 and 2 of 2019 and the learned District Judge has dismissed both the Interlocutory applications and hence, the learned counsel prayed for dismissal of this condone delay petition.
6. Heard the learned counsel appearing on either side and perused the records.
7. The lower court records reveals that the respondents/plaintiffs have filed a suit in O.S.No.14 of 2014 on the file of the District Court, Nagapatition, for partition. When the suit was posted for cross examination of PW1, their Advocate had made endorsement ‘no instructions’ from the defendants (appellants herein). Accordingly, they were set ex-parte on 17.11.2017 and subsequently, after completion of the legal formalities, ex-parte decree in the suit was granted on 17.01.2018.
8. Further, it is seen from the records that the chief examination of PW1 was taken on 14.06.2017 and for cross examination, posted to 01.07.2017 and the defendants took time and matter was adjourned from time to time for PW1 cross viz., 19.07.2017, 26.07.2017, 11.08.2017, 30.08.2017, 15.09.2017 and on 17.11.2017.
9. Thereafter, on 17.11.2017, the learned counsel for the appellants/defendants reported ‘no instructions’ and matter was again adjourned to 06.12.2017, 12.01.2018 and subsequently ex-parte decree was passed on 17.01.2018.
10. It appears that the plaintiffs filed final decree proceedings. After receipt of the notice in the final decree proceedings, in IA No.72 of 2018 on 12.06.2018, the appellants/defendants have filed IA Nos.1 and 2 of 2018 before the District Court to condone the delay of 298 days and to set aside the ex-parte decree. Both the petitions have been dismissed.
11. In this case, I.A.No.2 of 2019, is filed under Order 9 rule 13 to set aside the ex-parte decree. This was consequential to the dismissal of the condonation petition for the delay of 298 days and as against the order passed in Order 9 rule 13 dismissal, the present Civil Miscellaneous Appeal is filed. Here again ther
The court emphasized that the discretion to condone delay in filing an appeal is not a matter of right and must be exercised judiciously, considering the merits of the case only when sufficient cause....
The sufficiency of the cause for delay is the primary criterion for condoning delay under the Limitation Act, not merely the length of the delay.
The court ruled that delays in filing petitions can be condoned if sufficient cause is shown, emphasizing the importance of adjudicating cases on their merits.
Orders dismissing Section 5 Limitation Act petitions are not appealable; must be challenged via revision, independent of restoration applications.
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