A. Anandan and Others vs Smt. K. Amutha

R. Banumathi, J.—The application in M.P. No. 1 of 2011 is filed by the Petitioners/Appellants to condone the delay of 935 days in

representing O.S.A.S.R. No. 43783 of 2008.

O.S.A.SR. No. 43783 of 2008 arises out the order passed by the learned single Judge dated 11.3.2008 allowing the application in A. No.

6738 of 2007 in C.S. No. 592 of 2007 filed under Order VII Rule 11 CPC read with Order XIV Rule 8 of the Original Side Rules and thereby

rejecting the plaint in C.S. No. 592 of 2007 filed by the Petitioners/Appellants on the ground that the suit is barred under Order II Rule 2 C.P.C.

The suit - C.S. No. 592 of 2007 was filed by the Petitioners/Plaintiffs for declaration that they are the lawful owners of the plaint schedule

property, comprised in S. No. 97 measuring an extent of 0.72 acres situated at Nesapakkam village, Mambalam -Guindy Taluk, Chennai- 600

078 and for permanent injunction.

Case of Petitioners/Appellants was that the suit property was originally owned by Arunachala Naicker and that the said Arunachala Naicker

was in possession and enjoyment of the same. The said Arunachala Naicker had executed a sale deed dated 14.7.1941 in favour of one

Somasundara Mudaliar. It is the further case of Petitioners/Plaintiffs that the said sale deed dated 14.7.1941 is a sham and nominal document and

no consideration passed nor was it ever intended to be acted upon. Case of Petitioners/Plaintiffs is that the said sale deed was never acted upon

and that Arunachala Naicker continued to be in possession and enjoyment of the suit property. After the death of Arunachala Naicker, the

Petitioners/Plaintiffs are in uninterrupted and exclusive possession of the suit property. The Petitioners/Plaintiffs have filed the suit - C.S. No. 592

of 2007 for declaration of their title and for permanent injunction.

The said Somasundara Mudaliar, who purchased the property from Arunachala Naicker, had executed a Will dated 5.3.1976 in favour of the

Respondent/Defendant, who is stated to be the adopted daughter of Somasundara Mudaliar. The said Will was probated in the High Court in O.P.

No. 127 of 1986 and Probate has been granted in favour of the Respondent/Defendant.

Claiming under a Will executed by Somasundara Mudaliar, Respondent/Defendant filed O.S. No. 3286 of 2003 on the file of XIV Assistant

Judge, City Civil Court, Chennai for permanent injunction. The Petitioners/Plaintiffs have filed O.S. No. 3697 of 2003 on the file of XIV Assistant

City Civil Court, Chennai for permanent injunction. By a common judgment dated 27.6.2006, the suit - O.S. No. 3286 of 2003 filed by the

Respondent/Defendant was decreed and the suit - O.S. No. 3697 of 2003 filed by the Petitioners/Plaintiffs came to be dismissed. Against the said

common judgment, the Petitioners had preferred appeals in A.S. Nos. 611 and 612 of 2006 on the file of v. Additional City Civil Court, Chennai

and by the common judgment dated 30.4.2009 the First Appellate Court confirmed the decree of the trial Court. As against the judgment in A.S.

Nos. 611 and 612 of 2006, the Petitioners/Plaintiffs have preferred Second Appeals in S.A. Nos. 487 and 488 of 2010 which came to be

dismissed even at the admission stage on 21.7.2010.

Before the learned single Judge, Respondent/Defendant filed A. No. 6738 of 2007 under Order VII Rule 11 CPC to reject the plaint. By the

order dated 11.3.2008 the said application was allowed rejecting the plaint filed by the Petitioners/Plaintiffs on the ground that the suit is barred

under Order 2 Rule 2 C.P.C.

Being aggrieved by the order rejecting the plaint, Petitioners/Plaintiffs have preferred the appeal. The appeal papers were presented on

9.6.2008 and the papers were returned by the Office on 18.6.2008 for compliance of certain defects. The papers were not re-presented within

the stipulated time, but re-presented only on 20.1.2011 with a delay of 935 days. This application has been filed to condone the delay of 935 days

in re-presenting the memorandum of appeal and other papers.

In the affidavit, it is averred that after the papers were returned by the Office, there was a compromise talk and therefore the

Petitioners/Appellants have not taken immediate steps for representing the Memorandum of appeal and other papers. It is further averred that

there were other proceedings in connection with the injunction suit and after other proceedings are over, the present suit, being a comprehensive

one for declaration of title and for permanent injunction, it has become necessary for the Petitioners to prosecute the present O.S.A. and therefore

the Petitioners seek for condonation of delay of 935 days in representing the O.S.AS.R. No. 43783 of 2008.

Referring to the appeal proceedings arising out of injunction suits, the Respondent/Defendant has filed a detailed counter denying any

compromise talks. According to the Respondent/Defendant, the present O.S.A. is only second round of litigation and the enormous delay of 935

days in re-presenting the appeal papers has not been satisfactorily explained.

We have heard Mr. G. Nagarajan, learned Counsel appearing for the Petitioners and Mr. G. Jeremiah, learned Counsel appearing for the

Respondent.

Of course, the delay in representation of papers is between the Court and the Petitioners and the Courts normally adopt liberal approach. But

since there is enormous delay of 935 days in re-representation, we have ordered notice to the Respondent/Defendant and also heard the

Respondent/Defendant. Even though normally Court will take a liberal view in condonation of delay in representation, in view of enormous delay,

the case on hand stands on a different footing. In the facts and circumstances of the case, we have considered the matter applying the parameters

for considering the application u/s 5 of the Limitation Act. Though the Petitioners have alleged that because of the compromise talk they did not

represent the papers, on consideration of sequence of events, the reason stated for the delay is not convincing. The delay could be condoned only

when there is no negligence, inaction or want of bonafide. The sequence of events clearly indicate that the Petitioners/Plaintiffs were not diligent in

pursuing the matter.

As pointed out earlier, the order in A. No. 6738 of 2007 was passed on 11.3.2008 and the O.S.A. was filed on 9.6.2008. In the mean time,

by the common judgment dated 27.6.2006, the suit in O.S. No. 3697 of 2003 filed by the Respondent/Defendant was decreed and the suit - O.S.

No. 3286 of 2003 filed by the Petitioners/Plaintiffs was dismissed. Against the said common judgment, the Petitioners had preferred appeals in

A.S. Nos. 611 and 612 of 2006 on the file of v. Additional City Civil Court, Chennai and by the common judgment dated 30.4.2009 the First

Appellate Court confirmed the decree of the trial Court. As against the judgment in A.S. Nos. 611 and 612 of 2006, the Petitioners/Plaintiffs have

preferred Second Appeals in S.A. Nos. 487 and 488 of 2010 which came to be dismissed even at the admission stage on 21.7.2010. When the

Petitioners/Plaintiffs were pursuing the other rounds of litigation, it is impossible that the parties would have had any compromise talk. When the

Petitioners/Plaintiffs were seriously pursuing the other rounds of litigations, the enormous delay in representation has not been satisfactorily

explained.

In the counter affidavit filed by the Respondent, it is alleged that the Petitioners have created a sale agreement with fictitious name by name V.

Duraisamy and the Petitioners in collusion with the said Duraisamy are alleged to have created encumbrance over the property by registering a sale

agreement. In this regard, the Respondent is said to have given complaint to the Commissioner of Police and also to Inspector of Police, R-10

MGR Nagar Police Station, Chennai to take action against the Petitioners and the said persons for creating an encumbrance over the

Respondent''s property. Only at that stage, the Petitioners appeared to have taken steps in representing the Memorandum of appeal and other

papers returned for rectification of defects. The enormous delay of 935 days has not been satisfactorily explained and the reasons stated by the

Petitioners/Plaintiffs are not convincing.

In the result, the Petition is dismissed. However, there is no order as to costs. Consequently, the connected O.S.A.SR. is rejected.