Prayer in CMP No.7772 of 2023: This Civil Miscellaneous Petition has been filed to condone the delay of 718 days in filing the above Second Appeal.

Prayer in SA Sr No.118901 of 2022: The Second Appeal has been filed under Section 100 of CPC to set aside the judgment and decree passed in A.S.No.63 of 2018 on the file of Subordinate Judge, Omalur, dated 31.07.2019, confirming the judgment and decree passed in O.S.No.29 of 2004 on the file of District Munsif cum Judicial Magistrate, Omalur, dted 12.06.2018.

ORDER

This civil miscellaneous petition has been filed seeking to condone the delay of 718 days in filing the second appeal.

2. The first petitioner filed this petition on behalf of him and also on behalf of the petitioners 2 and 3. In the affidavit filed in support of the petition, it was stated that the judgment and decree of the first appellate court were delivered on 31.07.2019 and the 1st petitioner could not file a copy application immediately owing to his ill health. It was further pleaded that after his recovery, Covid 19 pandemic hit the world and hence, he could not take any steps. The petitioners further pleaded that in the mean time, there was a negotiation between the parties to settle the matter, however, the settlement talks ended in failure. Thereafter, the petitioners advised their counsel to file a copy application on 08.03.2022 and the same was made ready on 18.03.2022. Ultimately the second appeal has been filed on 28.10.2022.

3. Refuting the allegations contained in the affidavit, the respondents 5 and 6 filed counter and stated that after disposal of the suit, against which the second appeal is arising, the petitioners herein filed another suit in O.S.No.136 of 2019 against the respondents on the file of District Munsif, Arni seeking permanent injunction. In the said suit, the respondents filed an application under Order VII Rule 11 CPC in I.A.No.2 of 2020 and the same was allowed by the trial court on 12.06.2023. Therefore, the allegations contained in the affidavit about the ill health of the first petitioner is not a true and the same is abuse of process of court.

4. When the petitioner is able to file another suit in the year 2019 itself and prosecute the same, the allegations made in the present affidavit as if due to ill health, the first petitioner could not contact his counsel to give necessary instruction, is not at all acceptable. In the light of new suit filed by the petitioner, subsequent to the disposal of the first appeal, the averments in the affidavit as if settlement talks were going on also appeared to be invented one. Therefore, the petitioners are not giving any convincing reason for condoning such inordinate delay of 718 days in filing the second appeal.

5. In the light of the discussion made earlier, the petition stands dismissed. As a necessary consequence, the second appeal is rejected in the SR stage itself. There shall be no order as to costs.

11-06-2026

Index: Yes/No

Speaking/Non-speaking order

Neutral Citation: Yes/No

MST

To

1. The Subordinate Judge, Omalur.

2. The District Munsif cum Judicial Magistrate, Omalur.