The appellants are the petitioners before this Court, challenging the order in I.A.No.116 of 2012 in unnumbered appeal dated 17.09.2012 on the file of the Principal District Judge, Coimbatore.
2. The case of the respondent/plaintiff is that he has filed the suit in O.S.No.43 of 2008 before the Principal Sub-Judge, Gobichettipalayam for specific performance.
3. The case of the respondent/plaintiff is that the petitioners/appellants were executed a registered sale agreement on 13.06.2006 for selling the suit schedule of property in favour of the plaintiff, for the total sale consideration of Rs.1,20,000/- on the date of sale agreement, the respondent/plaintiff has paid a sum of Rs.95,000/- as advance to the petitioners/defendants and the balance amount was agreed to pay within a period of two years from the date of the sale agreement.
4. Even after lapse of 2 years when the respondent/plaintiff has ready to pay the said balance amount of Rs.25,000/- as per the sale deed, but, this petitioners/defendants were postponing the said execution of sale deed on receiving the balance amount of Rs.25,000/-. Therefore, the respondent/plaintiff has filed the above suit for specific performance against the petitioners/defendants.
5. On receipt of the summon in the said suit, the petitioners/defendants were filed their written statement through their Advocate by denying the above allegations. The petitioners/defendants were also alleged that there was no sale agreement dated 13.06.2006 was executed, but a sum of Rs.70,000/- was received from the plaintiff’s husband namely Chandran as hand loan for that the repayment of the said amount, the petitioners/ defendants were given the property as a security, but, the respondent/plaintiff colluding with them has created the document of sale agreement dated 13.06.2006. Therefore, they filed their written statement and praying the trial Court for dismissal of the suit.
6. Considering both sides, the learned Principal Sub-Judge, Gobichettipalayam was pleased to decreed the suit on 04.09.2010, by directing the petitioners/defendants to execute the sale deed by receiving the balance amount within a period of 3 months.
7. Aggrieved against the said judgment and decree in O.S.No.43 of 2008 dated 04.09.2010, the petitioners who are the defendants in the said suit were filed an unnumbered appeal before the learned Principal District Judge, Erode. But the said appeal was filed with a delay of 499 days.
8. As per the limitation act, the said appeal should filed within a period of 30 days from the date of receipt of the judgment and decree. But the said appeal was filed with a delay of 499 days. Since the 1st petitioner was suffering from Jaundice and he was taking treatment from 01.09.2010 at Sirumugai Siddha and Ayurvedic Clinic and the 2nd petitioner, who is the son of the first petitioner, was helping the 1st petitioner for the treatment.
9. The petitioners also stated that originally the suit was decreed on 04.09.2010, but before the delivery of the judgment from 01.09.2010, the 1st petitioner taking treatment for Jaundice at the said Sirumugai Siddha Ayurvedic Clinic and the 2nd petitioner helping the 1st petitioner.
10. Due to the above said genuine reason of suffering from Jaundice, the petitioners were filed the above said appeal with a delay of 499 days in filing the appeal. Therefore, they filed an application in I.A.No.116 of 2012 with a prayer to condone the delay of 499 days in filing the appeal against the said judgment and decree.
11. On receipt of the notice in the said application, the respondents/defendants were filed counter affidavit stating that the petitioners/defendants are none other than father and son.
12. Pursuant to the decree dated 04.09.2010 in the said suit, the learned Sub-Judge, Gobichettipalayam also executed a sale deed in favour of the respondent/plaintiff on 12.12.2011. In the above execution petition, the 1st petitioner’s daughter Premalatha has filed a claim application on 20.07.2011 before the Executing Court and the same was dismissed.
13. The respondent/plaintiff also denied about the suffering of Jaundice by the 1st petitioner and taking treatment at Siddha Hospital at Sirumugai. The respondent also states that the petitioners/defendants were fully aware of the execution petition filed before the Sub-Court, Gobichettipalayam and these petitioners were purposely allow the execution petition as ex-parte, but now only they filed the present application by stating that they have filed the appeal with a delay of 499 days.
14. The respondent also states that based on the evidence of PW1 and PW2 in the present application in I.A.No.116 of 2012, it may clearly states that there was no sufficient cause has been shown by the petitioners for filing the above condone delay application. Therefore, the respondent prayed the appellate Court for dismissal of the above application.
15. Considering both side cases, the learned Judge namely the Principal District Judge, Erode was pleased to dismissed the application on the ground that the petitioners/appellants not given any sufficient cause for the delay and also considering the claim application filed by the 1st petitioner’s daughter.
16. It is also made clear that the learned Judge has given a detail order in this case, challenging the order of dismissal in I.A.No.116 of 2012 in unnumbered appeal dated 17.09.2012, this petitioners/defendants were filed the present civil revision petition before this Court.
17. I heard Mr.Ma.P.Thangavel, learned counsel appearing for the petitioners and Mr.N.Manokaran, learned counsel appearing for the respondent.
18. It is admitted fact that the suit was dismissed on 04.09.2010, but if the defendants namely the petitioners aggrieved against the said decree, they have the right to file the appeal before the appellate Court. But, they have filed the said appeal with a delay of 499 days. When this Court has gone through the affidavit filed by the petitioners/defendants in supporting of their claim, they have stated in the affidavit as follows:
“1.We are petitioners herein and appellant in the above suit. We have filed the above appeal against the judgment and decree dated 4.9.2010 passed in O.S.No.43 of 2008 on the file of the Hon’ble Subordinate Judge Court of Gopichettipalayam.
2. The original suit was disposed on 4.9.2010. But no.1 of us had suffered from jaundice and was taking treatment from 1.9.2010 at Sirumugai Sidha and Ayurvethic clinic and no.2 of us was helping for the no.1’s treatment. Hence we unable to file the appeal within the time against the judgment and decree passed in the above original suit.
3. Now only no.1 of us, is recovered from the Jaundice and preferred this appeal and filed lately. So, the delay in filing the above appeal is not wanton and willful. If the delay is not condoned we will be putt to irreparable loss and hardship. Because the sit property is out residential building. If the Hon’ble court is not giving opportunity by condoning the delay in filing the appeal, our residential house will be taken by the respondent by executing the decree.
4. Therefore we pray that this Hon’ble court may be pleased to condone the delay of 499 days in filing the above appeal and to take on file the same and render justice.”
19. When this Court has gone through the affidavit filed by the petitioners/defendants, in the application in I.A.No.116 of 2012, the petitioners have not given any reason in respect of taking treatment, but he simply stated that from 01.09.2010 onwards, the 1st petitioner is taking treatment and the 2nd petitioner, who is the son of the 1st petitioner was helping the 1st petitioner. Therefore, they have filed the unnumbered appeal with a delay of 499 days.
20. When the appeal has been filed belatedly and filed their application for condone delay, the petitioners ought to have given the details for the delay for each and every day delay should be explained as per the judgments of this Court and the Hon’ble Apex Court held in various cases.
21. Apart from this, I have also gone through the affidavit, the petitioners have given reason simply that he is suffering from Jaundice from 01.09.2010, therefore, the delay of 499 days will be condoned.
22. If any litigant has filed the application to condone the delay, they should give proper reason, these type of averments were made before the Court and the litigants namely the petitioners herein are prayed the Court for accepting the long delay of 499 days.
23. For supporting the claim of the petitioners, they have produced unreported judgment passed by the Hon’ble Apex Court in Civil Appeal No.(S).3777 of 2015. The said judgments, there was a delay of 882 days delay in preferring an appeal suit and was dismissed by the trial Court and this Court also in CRP(NPD)No.266 of 2011 was dismissed and an appeal was filed before the Hon’ble Apex Court in Civil Appeal No.(S).3777 of 2015 in which the Hon’ble Apex Court has passed an order as follows:
“Leave granted.
This appeal arises out of an order dated 5th June, 2013, passed by the High Court of Judicature at Madras whereby CRP(NPD)No.266 of 2011 filed by the appellant has been dismissed and the order passed by the first appellate court declining condonation of 882 days in the filing of the appeal by the appellant affirmed.
We have heard learned counsel for the parties at some length. We are satisfied that in the facts and circumstances of the case, the first appellate court could and indeed ought to have condoned the delay in the filing of the appeal. Since, however, the delay is fairly inordinate, we are inclined to direct condonation subject to payment of costs.
We accordingly allow this appeal, set aside the orders passed by the High Court and that passed by the first appellate Court with the direction that upon deposit of a sum of Rs.50,000/- (Rupees fifty thousand) towards costs before the first appellate court within six weeks from today, the delay in the filing of the appeal shall stand condoned. The first appellate court shall hear and dispose of the first appeal filed by the appellant expeditiously and as far as possible within a period of six months from the date the costs are deposited by the appellant. The amount of costs shall be paid to the respondent.
The appeal is allowed in the terms and to the extent indicated above.”
24. The Hon’ble Apex Court states that the delay is clearly inordinate but the Hon'ble Apex Court was inclined to allow the condone delay application subject to payment of cost. Therefore, the petitioners/defendants were prayed this Court for allowing of the civil revision petition.
25. Per contra, the respondent/plaintiff has filed a counter affidavit stating that the petitioners were not given any reason for the huge delay of 499 days. Apart from this, the respondent/plaintiff also states that the 1st petitioner’s daughter has filed a claim petition in the execution Court and the said claim petition also dismissed by the Execution Court. Therefore, these petitioners were well aware about the filing of the execution petition by suppressing the said filing of claim petition, the petitioners were filed the present civil revision petition, which is not acceptable one.
26. For supporting their case, the learned counsel for the respondent has produced 3 judgments passed by this Court and the Hon'ble Apex Court:
(i) Lanka Venkateswarlu (Dead) by LRs. v. State of Andhra Pradesh and others reported in (2011) 4 Supreme Court Cases 363
(ii) Basawaraj and another v. Special Land Acquisition Officer reported in (2013) 14 Supreme Court Cases 81
(iii) H.Dohil Constructions Company Private Limited v.
Nahar Exports Limited and another reported in (2015) 1 Supreme Court Cases 680.
27. All the above 3 cases, the case reported in (2011) 4 Supreme Court Cases 363 the Hon'ble Court has stated as follows:
“28.We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as “liberal approach”, “justice oriented approach”, “substantial justice” cannot be employed to jettison the substantial law of limitation. Especially, in cases where the court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court restored to blatant sarcasms.
29.The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law.
The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections cannot and should not form the basis of exercising discretionary powers.”
28. The other case reported in (2013) 14 Supreme Court Cases 81 has stated as follows:
“9.Sufficient cause is the cause for which the defendant could not be blamed for his absence. The meaning of the word “sufficient” is “adequate” or “enough”, inasmuch as may be necessary to answer the purpose intended. Therefore, the word “sufficient”embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, “sufficient cause” means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has “not acted diligently” or “remained inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the court that he was prevented by any “sufficient cause” from prosecuting his case, and unless a satisfactory explanation is furnished, the court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose. (See Manindra Land and Building Corpn. Ltd. v. Bhutnath Banerjee, Mata Din v. A.Narayanan, Parimal v. Veena and Maniben Devraj Shah v. Municipal Corpn. Of Brihan Mumbai.)
10. In Arjun Singh v. Mohindra Kumar this Court explained the difference between a “good cause” and a “sufficient cause” and observed that every “sufficient cause” is a good cause and vice versa. However, if any difference exists it can only be that the requirement of good cause is complied with on a lesser degree of proof than that of “sufficient cause”.
11. The expression “sufficient cause” should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned, whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible. (Vide Madanlal v. Shyamlal and Ram Nath Sao v. Gobardhan Sao.)
12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. “A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation.” The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means “the law is hard but it is the law”, stands attracted in such a situation. It has consistently been held that, “inconvenience is not” a decisive factor to be considered while interpreting a statute.
13. The statute of limitation is founded on public policy, its aim being to secure peace in the community, to suppress fraud and prejury, to quicken diligence and to prevent oppression. It seeks to bury all acts of the past which have not been agitated unexplainably and have from lapse of time become stale. According to Halsbury's Laws of England, Vol. 28, p.266:
“605.Policy of the Limitation Acts.-The courts have expressed at least three differing reasons supporting the existence of statutes of limitations namely, (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence.”
An unlimited limitation would lead to a sense of insecurity and uncertainty, and therefore, limitation prevents disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party’s own inaction, negligence or laches. (See Popat and Kotecha Property v. SBI Staff Assn., Rajender Singh v. Santa Singh and Pundlik Jalam Patil v. Jalgaon Medium Project.)
14. In P.Ramachandran Rao v. State of Karnataka this Court held that judicially engrafting principles of limitation amounts to legislating and would fly in the face of law laid down by the Constitution Bench in Abdul Rehman Antulay v. R.S.Nayak.
15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the “sufficient cause” which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature.
16. In view of the above, no interference is required with the impugned Judgment and order of the High Court. The appeals lack merit and are, accordingly, dismissed.”
29. The another case reported in (2015) 1 Supreme Court Cases 680 has stated as follows:
“20.... In this context the maxim vigilantibus non dormientibus jura subveniunt (law assists those who are vigilant and not those who sleep over their rights) aptly applies to the case on hand. The respondents simply by throwing the blame on the previous counsel whose identity was not disclosed claimed that irrespective of the enormous delay of 1727 days in refilling the same should be condoned as a matter of course as there was only 9 days’ delay involved in filing the appeals.
21. .... Therefore, the principle that the law of limitation is based on a sound public policy and therefore in the absence of bona fide reasons the applications for condonation of delay should be strictly construed assumes significance.
22. In this context a Division Bench decision of the Madras High Court in T.N.Mercantile Bank Ltd. V. Appellate Authority can be usefully referred to paras 14 and 17 are relevant for our purpose, which read as under: (LLN pp. 462-64) “14.We are unable to agree with the reasoning of the learned Judge that no litigant ordinarily stands to benefit by instituting a proceeding beyond time. It is common knowledge that by delaying a matter, evidence relating to the matter in dispute may disappear and very often the party concerned may think that preserving the relevant records would be unnecessary in view of the fact that there was no further proceeding. If a litigant chooses to approach the Court long after the time prescribed under the relevant provisions of the law, he cannot say that no prejudice would be caused to the other side by the delay being condoned. The other side would have in all probability destroyed the records thinking that the records would not be relevant as there was no further proceeding in the matter. Hence to view a matter of condonation of delay with a presupposition that no prejudiced will be caused by the condonation of delay to the respondent in that application will be fallacious. In our view, each case has to be decided on the facts and circumstances of the case. Length of the delay is a relevant matter to be taken into account while considering whether the delay should be condoned or not. It is not open to any litigant to fix his own period of limitation for instituting proceedings for which law has prescribed periods of limitation.
17. ... Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long time, it cannot be presumed to be non-
deliberate delay, and in such circumstances of the case, he cannot be heard to plead that substantial justice deserved to be preferred as against technical considerations. We are of the view that the question of limitation is not merely a technical consideration. Rules of limitation are based on principles of sound public policy and principles of equity. Is a litigant liable to have a Damocles’ sword hanging over his head indefinitely for a period to be determined at the whims and fancies of the opponent?”
23. We may also usefully refer to the recent decision of this Court in Eshu Bhattacharjee where several principles were culled out to be kept in mind while dealing with such applications for condonation of delay. Principles (iv), (v), (viii), (ix) and (x) of para 21 can be usefully referred to, which read as under: (SCC pp. 658-59) “21.4. (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.
21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
21.8. (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.
21.9. (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.
21.10. (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.”
24. When we apply those principles of Bhattachargee case to the case on hand, it has to be stated that the failure of the respondents in not showing due diligence in filing of the appeals and the enormous time taken in the refilling can only be construed, in the absence of any valid explanation, as gross negligence and lacks in bona fides as displayed on the part of the respondents. Further, when the respondents have not come forward with proper details as regards the date when the papers were returned for refilling, the non-furnishing of satisfactory reasons for not refilling of papers in time and the failure to pay the court fee at the time of the filing of appeal papers on 6-9- 2007, the reasons which prevented the respondents from not paying the court fee along with the appeal papers and the failure to furnish the details as to who was their counsel who was previously entrusted with the filing of the appeals cumulatively considered, disclose that there was total lack of bona fides in its approach. It also requires to be stated that in the case on hand, not refilling the appeal papers within the time prescribed and by allowing the delay to the extent of nearly 1727 days, definitely calls for a stringent scrutiny and cannot be accepted as having been explained without proper reasons. As has been laid down by this Court, 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 refilling. The filing of an application for condoning the delay of 1727 days in the matter of refilling 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.”
All these above 3 cases, the Hon’ble Supreme Court very categorically held that the delay petition should not be allowed.
30. The Hon’ble Apex Court very categorically held that that in all these cases that while considering the applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason.
31. The Hon’ble Apex Court also clearly held that the Courts in this country, including the Supreme Court, adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient case under Section 5 of the Limitation Act. However, the concepts such as “liberal approach”, “justice oriented approach”. “substantial justice” cannot be employed to jettison the substantial law of limitation. All these judgments were rendered and the judgments rendered by the Hon’ble Apex Court was delivered on 20.04.2015 in Civil Appeal No.(S).3777 of 2015, in which there was a huge delay of 882 days which was accepted by the Hon’ble Apex Court with the huge cost of Rs.50,000/-.
32. The Hon’ble Apex Court very categorically held that while considering the delay application, the Court should have liberal approach in considering the Section 5 of the Limitation Act.
33. It is admitted fact that the appeal was filed with delay of 499 days and they have also not given the sufficient cause for the delay. Apart from this, the respondent/plaintiff has raised a ground by saying that the 1st petitioner’s daughter was filed a claim petition before the Executing Court and the same was dismissed. But the respondent has not given any particulars in respect of the filing claim petition filed by the daughter of the 1st petitioner.
34. Even assuming that if the application was filed by the daughter of the 1st petitioner that was made only in respect of her claim about the share of the property in respect of the suit schedule of property.
35. Apart from this, the suit was filed for specific performance and the same was decreed against the petitioners/defendants. Therefore, they have right to file an appeal challenging the said decree about his validness and no Court have right to curtail their legitimate right of appeal.
36. The respondent/plaintiff also states that pursuant to the above decree, the sale deed was also executed in favour of the respondent/plaintiff, but the execution of the sale deed would not take away the right of the appeal filed by the petitioners/defendants. The Hon’ble Apex Court in the said recent unreported judgment rendered in Civil Appeal No.(S).3777 of 2015 is very clearly held that though the delay is inordinate, but that can be condoned subject to the payment of the heavy cost. Applying the said judgments, though the petitioners/defendants have not given sufficient cost for the delay, but in the interest of justice by applying the said unreported judgment rendered by the Hon'ble Apex Court, I agreed the reason assigned by the petitioners for the condoning the delay, but that should be allowed on heavy cost. Therefore, the order passed by the learned Principal District Judge, Erode is liable to be set aside.
37. The respondent/plaintiff also states that in her counter that in para-4 that this respondent had spent more than a sum of Rs.60,000/- for the execution of the sale deed, which was executed on 10.01.2011. Therefore, in my view that amount should be compensated by the petitioners/defendants.
38. In the result:
(a) the civil revision petition is allowed by setting aside the order in I.A.No.116 of 2012 in Unnumbered Appeal dated 17.09.2012, passed by the learned Principal District Court, Erode on condition that the petitioners should pay a sum of Rs.60,000/- as cost to the respondent/plaintiff within a period of four weeks from the date of receipt of a copy of this order.
(b) the appellate Court namely the learned Principal District Judge, Erode is hereby directed to number the appeal and dispose of the same within a period of two months from the date of receipt of a copy of this order, by giving notice to both sides.
(c) the sale deed dated 13.06.2006 is kept in abeyance till the disposal of the appeal, pending on the file of the Principal District Judge, Erode and on passing the order in the said appeal, the said sale deed dated 12.12.2011 shall be acted upon. Consequently, connected miscellaneous petition is closed.
20.02.2017
vs Index:Yes Internet:Yes To The Principal District Court, Erode.
M.V.MURALIDARAN,J.
vs
CRP(NPD)No.4435 of 2012
and M.P.No.1 of 2012
20.02.2017
http://www.judis.nic.in