This petition is filed seeking to condone the delay of 1131 days in representing the appeal papers in S.A SR. No.84701 of 2009.
2. The learned counsel for the petitioner would submit that the first respondent has filed the suit for partition and separate possession in respect of Joint property. Originally, the plaintiff claimed 1/12th share and subsequently 1/4th share by amending the plaint. The Trial Court decreed the suit for 1/4th share and the appellate court reduced to 1/12th share. The contention of the appellant/2nd defendant was rejected by both the Courts below. However, granted the relief of 1/12th share of the suit property to the plaintiff. Challenging the said share allotted to the plaintiff/first respondent, the appellant has preferred this appeal before this Court.
3. According to the petitioner, the Judgment and Decree was passed in A.S.No.42 of 2008 on 27.01.2009. The appellant filed the appeal on 13.10.2009, subsequently registry returned the papers pointing out certain defects on 19.10.2009 by granting 10 days time. After rectifying the defects, the appeal papers were re-presented on 30.04.2010 with a delay. Again the papers were returned on 13.05.2010, during the summer vacation for rectification of the defects pointed out by the registry. After complying with the defects, again the papers were re-presented on 30.07.2010. But, the papers were returned on 10.08.2010 pointing out certain defects on the signature. After due compliance, the papers were again re-presented on 12.08.2010. Again the papers were returned on 06.09.2010. After taking back, the papers were misplaced in the office of the petitioner's counsel. They were able to trace the papers and represent the same only on 27.04.2012 with a delay. In view of the above, the delay in re-presentation is caused. The delay is neither wilful nor wanton.
4. The learned counsel for the respondents would submit that prima facie no case has been made out by the petitioner and no particulars have been furnished for the inordinate delay in re-presenting the appeal. Further, the learned counsel would submit that both the Courts below has held concurrently, against the claim of the appellant and she is challenging only the share allotted to the plaintiff in the appeal.
5. As rightly pointed out by the learned counsel for the respondents, the petitioner has not explained the reasons for the inordinate delay in re-presenting the appeal papers. Hence, there is no sufficient reasons for this Court to consider the condone delay application. In the light of the decision of the Hon'ble Supreme Court, in the case of H. DOHIL CONSTRUCTIONS COMPANY PRIVATE LIMITED Vs. NAHAR EXPORTS LIMITED AND ANOTHER, reported in (2015) 1 SCC 680, wherein it is held as follows:
“ 24. .... 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 exercised 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 five years was involved in getting its appeals registered.
6. In view of the above facts and the decision cited supra, in the case on hand, the appellant has not furnished any details in the affidavit for the inordinate delay. Therefore, this Court is not inclined to allow the condone delay application in M.P.No.1 of 2013 and hence, the same is dismissed. Consequently, the second appeal is rejected at the SR stage itself.
04.08.2017
Index: Yes/No avr/nl
D.KRISHNAKUMAR.J,
avr/nl
MP. No.1 of 2013
and SA.SR No.84701 of 2009
04.08.2017