The court ruled that the petitioners failed to establish sufficient cause to condone a 1325-day delay in filing an appeal, emphasizing the necessity of a bona fide explanation under the Limitation Act.

ORDER :

1. The above application has been filed under Section 5 of Limitation Act., to condone the delay of 1325 days in filing the second appeal, challenging the judgment and decree made in A.S.No.11 of 2018, dated 11.01.2019 on the file of the Principal Subordinate Court Kumbakonam, partly allowing the judgment and decree passed in O.S.No.83 of 2009, dated 28.09.2016 on the file of the I Additional District Munsif Court, Kumbakonam.

2. The appellants are defendants 1 to 3. The first respondent, as plaintiff, filed a suit in O.S.No.83 of 2009 seeking a declaration that the suit property belongs to them, recovery of possession, a mandatory injunction directing removal of the Reliance tower, and for past profits as well as future mesne profits.

3. The defendants 1 to 4 filed their written statement and contested the suit. The learned I Additional District Munsif Court, Kumbakonam, after framing necessary issues and after full trial, passed the judgment, dated 28.09.2016, granting the reliefs as prayed for. Aggrieved by the said judgment and decree, the defendants 1 to 4 preferred an appeal in A.S.No.11 of 2018 and the learned Principal Subordinate Judge, Kumbakonam, upon considering the materials available on record and on hearing the arguments of both the sides, passed the judgment and decree, dated 11.01.2019, partly allowing the appeal and thereby setting aside the judgment and decree in respect of the relief of mandatory injunction and past mesne profit, but confirmed the judgment and decree of the trial Court with regard to the relief of declaration, recovery of possession and future mesne profit. Challenging the judgment and decree of the first appellate Court, the defendants 1 to 3 filed the present second appeal along with the above application to condone the delay of 1325 days in filing the second appeal.

4. The petitioners/defendants 1 to 3 in their application to condone the delay have narrated the merits of the main case in most of the paragraphs and their case with regard to the delay condonation is that the appeal in A.S.No.11 of 2018 pending on the file of the Principal Subordinate Court Kumbakonam, was followed by the third respondent, who was also party to the proceedings; that the Court proceedings and the status of the appeal were followed by him, but unfortunately he had not stated about the status of the case to the petitioners; that the petitioners came to know that he colluded with the first respondent and is not having good relationship with them, that when the first respondent attempted to take possession, they came to know about the result of the said appeal suit and filing of the execution petition; that the petitioners immediately approached their Advocate in the trial Court and filed a copy application to get the certified copies on 25.09.2024 and the same were received on 03.10.2024; that their present counsel on record filed the second appeal on 12.11.2024 and hence, there was a delay of 1325 days in filing the second appeal; that the petitioners will be put to irreparable loss and hardship, if the delay is not condoned and that therefore, the delay in filing the second appeal is to be condoned.

5. Despite taking sufficient time, vakalat for the second respondent was not filed. Hence, the second respondent is set ex-parte. Despite receipt of Court notice, the third respondent has not turned up.

6. The first respondent filed a counter affidavit disputing the affidavit averments and further stated that the third respondent/third defendant is none other than the son of the first petitioner/first defendant; that the third respondent has been residing with the first petitioner under the same roof; that the contention of the