THE MADURAI BENCH OF MADRAS HIGH COURT ( Civil Appellate Jurisdiction )Wednesday v. 1 CHELLATHAI

CMP(MD) No.11806 of 2024BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ( Civil Appellate Jurisdiction )Wednesday, the Nineteenth day of March Two Thousand and Twenty FivePRESENTThe HONOURABLE MR. JUSTICE K.K. RAMAKRISHNANCMP(MD) No.11806 of 2024inSA(MD) SR No.47799 of 20241 PARVATHY W/O.LATE. CHINNAKALIAPPAN,ATCHANKULAM VILLAGE,SRIVILLIPUTTUR TALUK, VIRUDHUNAGAR DISTRICT.2 C.KARUPPASAMY, S/O. LATE. CHINNAKALIAPPAN,ATCHANKULAM VILLAGE,SRIVILLIPUTTUR TALUK, VIRUDHUNAGAR DISTRICT.3 C.DURAI S/O. LATE. CHINNAKALIAPPAN,ATCHANKULAM VILLAGE,SRIVILLIPUTTUR TALUK, VIRUDHUNAGAR DISTRICT. ... PETITIONER(S) Vs1 CHELLATHAI W/O. MUTHUSAMY, ATCHANKULAM VILLAGE, SRIVILLIPUTTUR TALUK, VIRUDHUNAGAR DISTRICT. ... RESPONDENT(S)For Petitioners:M/s.M.Ashok Kumar, AdvocateFor Respondent:Mr.M.Thirunavukkarasu, Advocate1/7 https://www.mhc.tn.gov.in/judis CMP(MD) No.11806 of 2024ORDER The defendants in O.S.No.229 of 2011 on the file of the Additional SubordinateJudge, Srivilliputtur, have filed this petition to condone the delay of 568 days in filingthe second appeal.2. The respondent/plaintiff filed a suit for specific performance on the basis ofthe sale agreement executed by the defendants dated 02.09.2009 and 03.09.2009respectively. The trial court declined to grant a decree of specific performance on thebasis of the sale agreement. However, she was granted an alternative relief ofrecovering a refund of the advance amount. Aggrieved by the same, she filed anappeal in A.S.No.44 of 2019 before the learned Principal District Judge, VirudhunagarDistrict at Srivilliputtur. The learned First Appellate Judge allowed the appeal andgranted a decree of specific performance. Challenging the same, thepetitioners/defendants filed an appeal with the delay of 568 days.3. In the affidavit, the petitioners stated that the third petitioner filed additionalaffidavit on behalf of the remaining petitioners. Paragraph No.4 of the affidavit statedas follows:-“4. I humbly submit that were shocked over the judgment anddecree of the first Appellate Judge. I humbly submit that I waslooking after the case and I informed my counsel to initiate steps forpreferring Appeal. I humbly submit that I was not sacking good2/7 https://www.mhc.tn.gov.in/judis CMP(MD) No.11806 of 2024health and hence, I could not further submit that since the printedjudgment was not ready I met the present counsel for preferringSecond Appeal with certified copies, I humbly submit that mycounsel informed me that there is a delay of 568 days in filing theAppeal. The memorandum of grounds filed along with the Appealmay be treated as part and parcel of the Affidavit.” 4. The respondent filed counter and also submitted that after obtaining notice inthe execution proceedings, there is no bona fide reason assigned in both the originalaffidavit and the additional affidavit filed by the petitioners to condone the delay of568 days in filing the second appeal.5.This Court considered the rival submissions made by the learned counselappearing on either side and perused the materials available on records. 6. In the petition, the petitioners specifically averred that they applied for acopy of the printed judgment. But, they have not received the same till date. Apartfrom that, the third petitioner alone looked the entire case proceedings and he wassuffered from some illness. The same was denied by the respondent. 7. It is the case of the respondent that the petitioners already got a copy of theprinted judgment and intentionally evaded from filing the Second Appeal. Apartfrom that, there was no record to show the medical illness of the third petitioner. But,this Court bone fidely believed the averment, which was stated in the affidavit is3/7 https://www.mhc.tn.gov.in/judis CMP(MD) No.11806 of 2024correct. Hence, this Court satisfies the reasons stated in the affidavit.8. Further, this Court is duty bound to bring the principle laid down by theHon'ble Supreme Court to condone the delay in filing the appeal in the case of N.Balakrishnan v. M. Krishnamurthy, reported in (1998) 7 SCC 123, the relevantparagraphs are extracted hereunder:-10.The reason for such a different stance is thus:The primary function of a court is to adjudicate thedispute between the parties and to advance substantial justice.The time-limit fixed for approaching the court in differentsituations is not because on the expiry of such time a badcause would transform into a good cause.11.Rules of limitation are not meant to destroy the rightsof parties. They are meant to see that parties do not resort todilatory tactics, but seek their remedy promptly. The object ofproviding a legal remedy is to repair the damage caused byreason of legal injury. The law of limitation fixes a lifespan forsuch legal remedy for the redress of the legal injury sosuffered. Time is precious and wasted time would neverrevisit. During the efflux of time, newer causes would sproutup necessitating newer persons to seek legal remedy byapproaching the courts. So a lifespan must be fixed for eachremedy. Unending period for launching the remedy may leadto unending uncertainty and consequential anarchy. The lawof limitation is thus founded on public policy. It is enshrined4/7 https://www.mhc.tn.gov.in/judis CMP(MD) No.11806 of 2024in the maxim interest reipublicae up sit finis litium (it is for thegeneral welfare that a period be put to litigation). Rules oflimitation are not meant to destroy the rights of the parties.They are meant to see that parties do not resort to dilatorytactics but seek their remedy promptly. The idea is that everylegal remedy must be kept alive for a legislatively fixed periodof time.12.A court knows that refusal to condone delay wouldresult in foreclosing a suitor from putting forth his cause.There is no presumption that delay in approaching the court isalways deliberate. This Court has held that the words“sufficient cause” under Section 5 of the Limitation Act shouldreceive a liberal construction so as to advance substantialjustice vide vShakuntala Devi Jainv.Kuntal Kumari[AIR 1969SC 575 : (1969) 1 SCR 1006] and State of W.B. v. Administrator,Howrah Municipality[(1972) 1 SCC 366 : AIR 1972 SC 749] . 13.It must be remembered that in every case of delay,there can be some lapse on the part of the litigant concerned.That alone is not enough to turn down his plea and to shut thedoor against him. If the explanation does not smack of malafides or it is not put forth as part of a dilatory strategy, thecourt must show utmost consideration to the suitor. But whenthere is reasonable ground to think that the delay wasoccasioned by the party deliberately to gain time, then thecourt should lean against acceptance of the explanation. While5/7 https://www.mhc.tn.gov.in/judis CMP(MD) No.11806 of 2024condoning the delay, the court should not forget the oppositeparty altogether. It must be borne in mind that he is a loserand he too would have incurred quite large litigationexpenses. It would be a salutary guideline that when courtscondone the delay due to laches on the part of the applicant,the court shall compensate the opposite party for his loss.9.Applying the above principle, this Court satisfied with the reasons stated inthe affidavit of the petition that the printed judgment was not served upon thepetitioners and the third petitioner, who has been looked the entire case was sufferedfrom serious illness. Hence, this Court is inclined to condone the delay of 568 days infiling the above Second Appeal in order to render the decision on merits.10. Accordingly, this petition is allowed on payment of cost of Rs.10,000/-(Rupees Ten Thousand Only) payable to the learned counsel for the respondent onor before 17.04.2025, failing which, this petition stands dismissed automaticallywithout further reference to this Court. sd/- 19/03/2025 / TRUE COPY / /04/2025 Sub-Assistant Registrar (C.S.-I/ II /III/ IV) Madurai Bench of Madras High Court, Madurai - 625 023. Dss+1 CC to M/s.M.ASHOK KUMAR, Advocate ( SR-3167[I] dated 20/03/2025 )6/7 https://www.mhc.tn.gov.in/judis CMP(MD) No.11806 of 2024 ORDER IN CMP(MD) No.11806 of 2024inSA(MD) SR No.47799 of 2024 Date :19/03/2025NBF/VR/ SAR/ (02/04/2025) 7P/2CMadurai Bench of Madras High Court is issuing certified copies in this format from 17/07/20237/7