IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.08.2017 CORAM THE HON'BLE MR. JUSTICE D. KRISHNAKUMAR MP. No.2 of 2014 and S.A. SR No.77748 of 2013
1. Rajendiran
2. Kannagi Babu ..Petitioners Vs.
1. Irusammal 2.Neelamegam
3. Menaka ..Respondents
PRAYER: This Petition is filed under Section 5 of the Limitation Act, seeking to condone the delay of 2148 days in preferring the Second Appeal as against the judgment and decree made in A.S.No.2 of 2007 passed by the Subordinate Judge, Vellore dated 06.10.2007.
For petitioners : M/s.P.Chandrasekar For respondents : Mr.G.Poonkundran For R1 to R3 ORDER This Miscellaneous Petition is filed to condone the delay of 2148 days in preferring the Second Appeal as against the judgment and decree made in A.S.No.2 of 2007 passed by the Subordinate Judge, Vellore dated 06.10.2007.
2. According to the petitioner, the appellant was not aware of the Judgment and decree passed in A.S.No.2/2007 dated 06.10.2017, by the Appellate Court. On receipt of notice dated 19.08.2012 from the learned Advocate Commissioner, the petitioner was aware of the proceedings. Hence, with great difficulty, the petitioner obtained the appeal papers from the counsel appeared for the appellant before the Appellate Court. Then the appeal papers were handed over to the present counsel appearing before this Court. Therefore, the delay of 2148 days is caused in preferring the second appeal.
3. 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 filing second appeal. Further, the learned counsel would submit that pursuant to the preliminary decree, final order has also been passed, after hearing the contesting parties. Hence, the present appeal is also liable to be rejected.
4. Heard the submissions made by the learned counsel for the parties and perused the materials available on record.
5. As rightly pointed out by the learned counsel for the respondents, the petitioner has not explained the reasons for the inordinate delay in filing the appeal. 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, this Court finds no force in the contention of the petitioner. Therefore, the condone delay application in M.P.No.2 of 2014 is dismissed. Consequently, the second appeal is rejected at the SR stage itself.
04.08.2017
Index: Yes/No avr/nl To The Sub Ordinate Judge, Vellore.
D.KRISHNAKUMAR.J,
avr/nl MP. No.2 of 2014 and S.A. SR No.77748 of 2013
04.08.2017