The petitioner is the appellant and the 1st defendant in OS.No.3159/1999 on the file of the Court of the XII Assistant City Civil Judge, Chennai. The 1st respondent / plaintiff had filed the above suit partition to divide the suit A and B Schedule Properties into four equal shares and allot one such share to him with a further direction to pay mense profit at the rate of Rs.36,000/- from 01.03.1996 to 28.02.1999 and also for rendition of accounts and other consequential reliefs and the suit was contested and a preliminary decree dated 18.08.2003 was granted in favour fo the 1st respondent / plaintiff.
2 The 1st defendant/petitioner/appellant aggrieved by the decreeing of the suit, filed AS.No.356/2007 on the file of the Court of the III Additional City Civil Judge, Chennai, and it was also dismissed vide judgment and decree dated 26.04.2011. Challenging the legality of the same, the petitioner / appellant has filed the present Second Appeal on 22.12.2014 and along with the Appeal Memorandum, filed MP.No.1/2015 [present petition] for condonation of delay of 1159 days in filing the appeal.
3 The petitioner/1st defendant/appellant, in the affidavit filed in support of the Miscellaneous Petition would aver among other things, that the Lower Appellate Court has delivered the judgment on 26.04.2011 and his counsel who was appearing for him in the appeal suit, informed the petitioner/1st defendant/appellant that he has succeeded in the appeal and he need not worry about the proceedings any more. Though the petitioner was repeatedly contacting his counsel to furnish the copy of the judgment, it was not furnished on the pretext that copies were yet to be made ready. It is further averred that the 1st respondent / plaintiff moved an application for appointment of an Advocate Commissioner in the application to pass final decree and once again, the petitioner/1st defendant enquired with the Lower Appellate Court counsel and he assured him that the applications are not maintainable in the light of the fact that he has succeeded in the appeal suit and having reposed complete faith, the petitioner/1st defendant/appellant did not take any action and would further aver that during July and August 2013, he was hospitalised at Sri Ramachandra Medical College and Hospital, Porur, for continuous high fever, vomiting and fits and he was unconscious due to age factor and mental agony and the 1st respondent / Plaintiff herein who is happened to be his son through the first wife, did not even visit him in the hospital. The petitioner/1st defendant/appellant was shocked to receive a notice dated 02.06.2014 from the learned counsel appearing for the 1st respondent / plaintiff in IA.No.3115/2014 in OS.No.3159/1999, fixing the date of hearing on 11.06.2014 and once again, the petitioner/1st defendant contacted his counsel and since his response was not satisfactory, he approached his well wishers and friends and also took opinion from other counsel and then only, he came to know that he lost before the Lower Appellate Court also and after verifying the records, took steps to get the certified copy of the judgment and decree and the said copy was furnished to him on 28.11.2014 and he immediately filed the Second Appeal on 22.12.2014 and in the light of the reasons assigned above, which are beyond his control, prays for condonation of delay of 1159 days in filing the Second Appeal.
4 The learned counsel for the petitioner / 1st defendant / appellant would submit that admittedly, the 1st respondent / plaintiff is the son of the petitioner / 1st defendant, born to him through his first wife and since the Lower Appellate Court counsel made a representation that he has succeeded in the appeal suit, he did not take any steps and only after receipt of notices in the final decree application, he contacted his counsel and then only, he became aware that he lost before the Lower Appellate Court and engaged some other counsel and after getting the certified copies, filed the Second Appeal without any delay and therefore, the delay of 1159 days cannot be construed as neither willful nor wanton and prays for condonation of delay.
5 The learned counsel for the petitioner / 1st defendant / appellant has also drawn the attention of this Court to the judgments of the Hon'ble Supreme Court of India as well as this Court reported in:-
[1] 1998 [7] SCC 123 [N.Balakrishnan Vs. M.Krishnamurthy] ;
[2] 2011 [4] SCC 86 [B.T.Purushothama Rai Vs. K.G.Uthaya and others] ; and [3] 2015 [1] CTC 811 [Ajay Kumar Gulecha Vs. J.Vijayakumar ; Uttamchand Gulecha] and would submit that the words sufficient cause should be construed liberally and acceptability of explanation alone is the consideration and not the length of the delay and in the absence of any mala fide or deliberate delay as a dialatory tactics, the delay should be normally condoned and prays for condonation of delay.
6 Per contra, Mr.Balan Haridass, learned counsel appearing for the 1st respondent / plaintiff / decree holder, has invited the attention of this Court to the Counter affidavit and would submit that the Lower Appellate Court has dismissed the appeal filed by the petitioner / appellant on 26.04.2011 and the 1st respondent / plaintiff had filed IA.No.24915/2005 on 09.03.2005 and thereafter, filed IA.No.15930/2012 during September 2012 for appointment of fresh Advocate Commissioner and the petitioner herein has entered appearance and filed his common counter on 08.12.2012 and subsequently, the Advocate Commissioner was appointed and after decreeing of the suit, the Advocate Commissioner has submitted his report on 04.04.2013 in IA.No.24915/2005 and the petition filed by the 1st respondent / plaintiff for appointment of fresh Advocate Commissioner was also dismissed on 28.10.2013 and thus, all along the petitioner / 1st defendant / appellant was very well aware of the proceedings and further, filed the Second Appeal only on 22.12.2014 and since petitioner/1st defendant/appellant became aware of the dismissal of his appeal suit even during October 2012, for the reasons best known, he waited for nearly two years and thereafter only, filed the present Second Appeal and in the absence of any proper and sufficient reasons, such a huge delay cannot be condoned and it is the further submission of the learned counsel for the 1st respondent that now the petitioner/1st defendant/appellant has started blaming his Lower Appellate Court counsel and has invited the attention of this Court to the Judgment of the Hon'ble Supreme Court of India reported in 2015 [1] SCC 680 [H.DOHIL CONSTRUCTIONS COMPANY PRIVATE LIMITED Vs. NAHAR EXPORTS LIMITED AND ANOTHER] and would submit that in similar facts and circumstances, the delay in representation itself came to be dismissed by this Court and therefore, prays for dismissal of this petition.
7 This Court paid its best attention to the rival submissions and also perused the materials placed before it.
8 The 1st respondent herein filed the suit for partition and for other consequential reliefs and after contest, it came to be decreed on 18.08.2003. It is also brought to the notice of this Court that the learned counsel for the petitioner/1st defendant/appellant in the Lower Court, filed an application to get the certified copy of the judgment and decree passed by the Trial Court and it was struck off and thereafter, it was restored and the certified copies of the judgment and decree were furnished to him and thereafter, filed the appeal suit which came to be numbered during the year 2007 and after contest, it was also dismissed on 26.04.2011 and this Second Appeal came to be filed on 22.12.2014.
9 A perusal of the typed set of documents filed by the 1st respondent would disclose that immediately after the dismissal of the appeal suit on 26.04.2011, the petitioner herein filed IA.Nos.15930 & 15931/2012 in OS.No.3159/1999, praying for appointment of fresh Advocate Commissioner to inspect the A and B Schedule property and to defer further proceedings by the Advocate Commissioner, viz., Ms.D.Lakshmi, in pursuant to the warrant issued by the Trial Court. The 1st respondent herein has filed a counter and ultimately, the Advocate Commissioner has filed his final report on 04.04.2013, stating among other things that the said A and B Schedule properties are indivisible in nature. It is relevant to extract paragraphs No.15 & 16 of the said Report:-
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15.It is submitted that a Final Report was prepared by the Advocate Commissioner on the basis of the inspection and Surveyor Reports. However, the respondent's counsel raised some objection before the Court and made some allegations against the advocate commissioner considering all the facts, an order passed by the Court on 02.02.2009. Thus, the respondents counsel dragging on the case, stating one or the other reasons. Further, he has chosen to threaten the Advocate Commissioner. The petitioner or his counsel also has not initiated any steps and not requested the commissioner to proceed with. Having waited for long time, the Advocate Commissioner issued a notice dated 19.09.2012 fixing the inspection date. On 14.09.2012, the advocate commissioner requested the Assistant Commissioner, North Beach Police Station for police help showing the court order. But the police officials has not given police help stating that the police protection order is an earlier one. Hence, stating all those things the advocate commissioner sent telegrams to both the counsels and the Advocate Commissioner and stopped the inspection. Hence, the advocate commissioner has not inspected the premises. However, the respondent has filed the petition on 03.10.2012 seeking appointment of fresh advocate commissioner and deposit the warrant issued to advocate commissioner. Since allegations have been made against advocate commissioner, she has not proceed further and not filed her report. However, till today no order is passed in the Interim application. The parties have not paid for Surveyor. Both parties not spent any amount either on the date of Inspection or any other date except the initial amount of Rs.5000/-. The advocate commissioner incurred much more amount over the said Rs.5000/-.
16.It is submitted that since, petition has been filed against the advocate commissioner, the advocate commissioner not intent to proceed further and there is not further direction from the Court as well. Hence, the Advocate Commencing not intend to proceed further with warrant and filed this final report and returned the warrant dated 04.04.2013. Hence, it is therefore, prayed that this Hon'ble Court may be pleased to accept the final report and pass other suitable orders, therefor and thus render justice. 10 In the decision relied on by the learned counsel for the petitioner reported in 1998 [7] SCC 123 [cited supra], the Hon'ble Apex Court has laid down the proposition that the length of delay is not matter and the acceptability of the explanation is the only criterion and in every case of delay, there can be some lapse on the part of the litigant concerned and that alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dialatory tactics, the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the Court should lean against acceptance of the explanation.
11 In the decision reported in 2015 [1] CTC 811 [cited supra], a Single Bench of this Court held that the Law of Limitation cannot be invoked for destroying the rights of the parties and that on the facts of the case, no prejudice would be caused to the petitioner if the 1st respondent is given an opportunity to contest the case.
12 In the decision relied on by the 1st respondent reported in 2010 [4] SCC 459 [cited supra], the Hon'ble Apex Court has laid down the following proposition:-
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15.The expression sufficient cause employed in section 5 of the Limitation Act, 1963, and similar other statutes is elastic enough to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice. Although, no hard-and-fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate Collector [LA] V. Katiji [1987 [2] SCC 107] ; N.Balakrishnan Vs. M.Krishnamurthy [1988 [7] SCC 123] and Vedabai V. Shantaram Baburao Patil [2001 [9] SCC 106]. 13 The Honb'le Supreme Court of India in the decision reported in 2015 [1] SCC 680 [cited supra], has laid down the following ratio :-
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The respondents simply by throwing the blame on the previous counsel, whose identity was not disclosed, claimed that irrespective of the enormous delay 1727 days in refiling the same should be condoned as a matter of course as there was only 9 days' delay involved in filing the appeals. It is not possible to countenance such a stand made on behalf of the respondents. In this context, the maxim vigilantibus non dorminentibus jura subveniunt [law assists those who are vigilant and not those who sleep over their rights] aptly applies to the case on hand.
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T.N.Mercantile Bank Limited V. Appellate Authority, [1990] 1 LLN 457 [Mad], approved.
Courts are required to weigh the scale of balance of justice in respect of both the parties and the same principle cannot be given a go-by under the guise of liberal approach even if it pertains to refiling. The filing of an application for condoning the delay of 1727 days in the matter of refiling without disclosing reasons, much less satisfactory reasons only results in the respondents not deserving any indulgence by the Court in the matter of condonation of delay. The respondents had filed the suit for specific performance and when the trial court found that the claim for specific performance based on the agreement was correct, but exercise its discretion not to grant the relief for specific performance but grant only a payment of damages and the respondents were really keen to get the decree for specific performance by filing the appeals, they should have shown utmost diligence and come forward with justifiable reasons when an enormous delay of 5 years was involved in getting its appeals registered... 14 This Court, keeping in mind the ratio laid down in the above cited decisions, has carefully scanned the affidavit filed in support of this petition, counter filed by the 1st respondent as well as the typed set of documents filed on behalf of the 1st respondent. It is rightly pointed out by the learned counsel for the 1st respondent that though the Lower Appellate Court has dismissed the suit filed by him on 26.04.2011, he was having the knowledge about the dismissal of the suit and in fact, filed I.A.Nos.15930, 15931 of 2012 on 08.12.2012 and 03.10.2012 respectively, praying for appointment of fresh Advocate Commissioner and to defer the Advocate Commissioner from proceeding with the warrant dated 21.11.2012. The petitioner / appellant / 1st defendant being aware of the dismissal of the suit, filed the appeal during October 2012, has blamed the counsel and then applied for the certified copy of the judgment and decree on 19.09.2014 and got delivered on 09.10.2014 and filed the Second Appeal on 22.12.2014. Thus, admittedly, for the period from September 2012 to December 2014, the petitioner/appellant has miserably failed to explain the reasons for such a huge delay.
15 Though the petitioner / appellant has blamed the Lower Appellate Court counsel, the fact remains that he did not take any action against the said counsel by lodging a complaint either before the Bar Council or before the Consumer Forum. In the considered opinion of the Court, in the absence of any plausible or acceptable reason, such a huge delay of 1159 days in filing the Second Appeal cannot be condoned.
16 In the result, the miscellaneous petition is dismissed and consequently, the Second Appeal is rejected in the SR stage itself.
20.03.2017 Speaking order Index : No Internet : Yes AP M.SATHYNARAYANAN, J., AP MP.No.1/2015 & SA.SR.No.111183/2014 20.03.2017 http://www.judis.nic.in