The petitioner/appellant, who is no more, filed O.S.No.442 of 1995 on the file of the District Munsif Court, Harur, praying for a decree for declaration and other consequential reliefs and after contest, the said Suit came to be dismissed on 29.11.2001. Challenging the legality of the same, he filed an appeal in A.S.No.29 of 2009 on the file of the Sub-Court, Harur and vide judgment and decree dated 31.12.2009, the said appeal was also dismissed and challenging the legality of the same, the present appeal was filed on 20.07.2016. The petitioner/appellant filed the C.M.P.No.12634 of 2016 to condone the delay of 2259 days in filing the second appeal and pendency of the same, he died and therefore, his legal representatives filed C.M.P.No.481 of 2017 to bring them on record in the place of the deceased/sole appellant and it was ordered on 23.01.2017.
2. The learned counsel appearing for the petitioners/appellants has invited the attention of this Court to the affidavit filed in support of this petition and would aver that the petitioner/sole appellant, who is no more and the first respondent are closely related and the respondents 1 and 3 assured him to get the problem solved between themselves and believing the same, he did not file the second appeal and waited till June 2016 and after understanding that the promises made by the first respondent turned out to be false, he filed the second appeal and therefore, the delay is neither willful nor wanton and prays for condonation of delay.
3. Per contra, Mr.R.Ezhilarasan, learned counsel appearing for the third respondent would submit that the delay is very much on the higher side and in the absence of proper and acceptable reason, such a huge delay cannot be condoned and the findings rendered by the Courts below are concurrent in nature and therefore, prays for dismissal of this petition.
4. This Court paid its best attention to the rival submissions and also perused the materials placed before it.
5. A perusal of the materials placed before it would disclose that the Appeal Suit in A.S.No.29 of 2009 was dismissed by the Sub-Ordinate Judge, Harur, vide judgment and decree dated 31.12.2009 and copy application was filed on 08.01.2010 and it was made ready on 02.02.2010 and order copy was delivered on 11.02.2010 and the Second Appeal was filed on 20.07.2016. The petitioner/appellant, who has originally sworn to the affidavit, has averred that on account of the promises given by the respondents 1 and e that the problems would be solved amicably, he did not take any effort to file the second appeal and on coming to know that the promises given by the respondents 1 and 3 are false, filed the Second Appeal on 20.07.2016.
6. The Hon'ble Supreme Court of India in [Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and Others [2013 (11) Scale 418] has dealt with the matter wherein the Division Bench of Calcutta High Court had condoned the delay of 2449 days in filing the appeal and also granted an order of ad-interim stay and the Hon'ble, Supreme Court, after referring to various decisions, has culled out the following principles:
15. From the aforesaid authorities the principles that can broadly be culled out are:
i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
ii) The terms sufficient cause should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation.
iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
16. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: -
a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.
b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.
c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
d) The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters. This Court, keeping in mind the principles laid down in the above cited decision, has carefully considered the contents of the affidavit and is of the view that the huge delay of 2259 days in filing the Second Appeal has not been properly explained at all.
7. It is the stand of the petitioner/appellant, who is no more, that on believing the promises made by the respondents 1 and 3 that the problems would be settled amicably, he did not take any effort to file the second appeal and on coming to know that the said promises were false during June 2016, he filed the Second Appeal on 20.07.2016 and in the absence of acceptable reasons, such a huge delay cannot be condoned and therefore, CMP.No.12634 of 2016 is dismissed and consequently, S.A.SR47403 of 2016 is rejected. No costs.
20.03.2017 Index : Yes / No Internet : Yes / No jvm To
1.The District Munsif, Harur.
2.The Subordinate Judge, Harur.
M.SATHYANARAYANAN, J.
jvm S.A.SR47403 of 2016 and C.M.P.No.12634 of 2016 20.03.2017 http://www.judis.nic.in