M. Subramania Mudaliar vs K. Janardhanam

Srinivasan, J.—C.M.P. No. 9360 of 1993 :-- This petition is for condonation of delay of 2,092 days in representing the appeal in AS.SR.

No. 55107 of 1987. The appeal is directed against the decree and judgment in O.S, No. 3262 of 1978 on the file of the VII Assistant Judge, City

Civil, Madras. The appeal was originally presented in this Court on 6-7-1987. The papers were returned on 18-9-1987 by the Registry for

rectification of certain defects. The papers bear the seal of 25-6-1993 as if they were represented on that date. There is no sort of endorsement by

the counsel at the time of the alleged representation. The papers were returned by the Registry and the concerned Appeal Examiner has made an

endorsement of return on that date itself. One of the returns raised a query as to how this Court is the proper forum to entertain the appeal when

the value of the suit in Rs. 26,585/-, that is below Rs.30,000/-. The Deputy Registrar had initialled the return and made an endorsement,

Time 10 days for representation to proper Court.

The Deputy Registrar had no jurisdiction to make that order. The return was only to enquire the advocate as to how this Court was the proper

forum. After the advocate to give his answer, the matter should be placed before Court for appropriate orders. Moreover, there was a delay of

nearly six years by that time in representation and without posting the matter before Court to decide the question whether the delay in

representation should be condoned, the Deputy Registrar should not have directed representation to proper Court.

The papers were presented in the City Civil Court, Madras, on 30-6-1993. The City Civil Court returned the papers on 5-7-1993. One of the

endorsements was that the delay in representation should be condoned by the High Court, under the Appellate Side Rules. Again the papers were

presented in this Court on 8-7-1993 for condonation of delay in representation. The Deputy Registrar returned the papers on the ground that the

value of the subject matter being below Rs. 30,000/-, it is only the City Civil Court which is having jurisdiction. The papers were represented on

15-7-1993 in the City Civil Court once again.

The suit out of which the appeal arose was heard and disposed of by a common judgment along with No. 2353 of 1981. Against the judgment

and decree in the said suit, an appeal was filed in this Court and numbered as A.S. No. 387 of 1987. That appeal was posted in the list for final

hearing, It came before us on 15-7-1993. When the appeal was taken up for hearing and the appellant''s counsel stated the facts, learned counsel

for the respondents raised an objection that the appeal is barred by res judicata as there was no appeal against she judgment in the connected suit

O.S. No. 3262 of 1978 against which the present appeal is filed. Learned counsel for the appellant then submitted that the appeal was presented

wrongly in this Court earlier and after return of the papers, it was represented in the City Civil Court. He gave the Stamp Register Number of the

appeal as well as the stamp register number of the Civil Miscellaneous Petition filed by him to the City Civil Court for condonation of delay in

representation. We passed an order on 15-7-1993 adjourning the said Appeal No. 387 of 1987 to this date a and withdrawing the papers in the

present appeal from the City Civil Court. We directed the City Civil Court to send all the records to this Court on or before 19-7-1993. Thus, the

papers in this appeal have come before us to-day.

The petition, for condonation of delay is supported by an affidavit filed by a junior counsel. It is staled in the affidavit that the two appeals were

filed in time against the judgment in both the suits and in one of them an urgent application for stay was filed and moved and therefore, that appeal

got numbered earlier. In so far as the present appeal is concerned, it is stated in the affidavit that the papers were returned by the office on 18-9-

1987 to rectify certain defects, but unfortunately they were not represented in time. Paragraph 2 of the affidavit reads thus:

I submit for a long time, the appeal papers were being searched by the office but they could not be traced or located. In fact we did not even

know originally that the appeal papers were returned by the office on 18-9-1987. When the connected appeal A.S. No. 387 of 1987 was posted

in the ready list, we again made an extensive search both in our law chambers, our senior''s residence and even in the High Court office. In fact we

made a thorough and elaborate search during the summer recess this year but still we could not locate the papers. We then decided to reconstruct

the papers and apply to this Hon''ble Court for necessary permission. It was at that juncture our senior officer clerk Sri V. S. Viswanathan died on

2-6-1993, just before the reopening of the Courts. After the ceremonies were over, his son brought to us certain files, papers and records from his

house, pertaining to our office. It was then that we located the returned appeal papers kept in a big file which contains very many earlier records of

the party. In facts the appellant is living only at Purasawalkam and is well known to our late clerk who also lived in Purasawalkam. This bundle was

in a big file containing unnecessary and old papers of the party. Immediately we have made arrangements to represent the appeal papers.

This application for condonation of delay is opposed by the respondents. A counter affidavit has been filed by the first respondent. Along with

the counter-affidavit, a typed set of papers has been filed. In the typed set of papers, we find a letter written on 24-6-1988 by the then advocates

for the respondents. That letter is addressed to the counsel for the appellant. In that letter, it is stated as follows:--

It is stated in the affidavit of your client in CMP. No. 8234 of 1987 in A.S. No. 387 of 1987 that an appeal has been filed against the judgment

and decree in O.S. No. 3262 of 1978. But strangely our clients have not received any notice of appeal as yet though it is more than a year since

the appeal should have been filed. We shall thank you to let us know the number of the appeal to enable us to file vakalat therein as we have

instructions to do so.

In the typed set of papers, a copy of the affidavit filed by the first respondent herein in CMP. No. 14325 of 1990 in which he was the petitioner

is also included. That was a petition for appointment of an advocate-Receiver to collect the rents and profits from the suit property. Paragraph 10

of the affidavit reads thus :

I may add that though more than three and a half years have elapsed even I have not been served with any notice of appeal alleged to have been

filed by the appellant against O.S. No. 3262 of 1978 by the same judgment dated 13-5-1986 with the said plan for causing further delay.

Thus in 1988 and again in 1990, the attention of the appellant as well as his counsel was specifically drawn to the fact that this appeal had not

been served on the respondent. That would have certainly put on notice the appellant as well as his counsel and prompted them to represent the

appeal. The failure to do so indicates a deliberate design to delay the matters. We are not convinced with the explanation given in the affidavit of

the junior counsel that the records could not be traced in spite of diligent search. Even according to the affidavit, the senior clerk who had the

records was living in Purasawalkam, which is also the place of the appellant himself. It is also seen from the affidavit that all the records of the

appellant were with the senior clerk. That shows that both of them were moving closely and the senior clerk was in charge of the affairs of the

appellant. It is but natural to infer that the appellant and the senior clerk would have been meeting very often. Particularly when the application for

appointment of receiver was filed by the respondents, the appellant would have met not only the senior clerk but also the counsel. There is no

explanation as to why even at that time the papers were not represented. It is stated in the affidavit that the counsel decided to reconstruct the

papers and apply to the Court for necessary permission in 1993. If the version that papers could not be traded even after an extensive search is

true, the decision to reconstruct the papers would have been taken in 1988 or at least in 1990. The inaction for over three years on the, part of the

appellant remains unexplained.

In the circumstances, there is no valid explanation for the inordinate delay in representation. Even if the facts stated in the affidavit are true, they

prove gross negligence and callous indifference on the part of the appellant and his counsel. Even assuming that there is negligence only on the part

of the counsel it is not a valid ground for condoning such a long delay of six years in representation of the appeal. Hence, this petition for

condonation of delay is dismissed.

As Sr. No. 55107 of 1987 : In view of the dismissal of the petition to condone the delay in representation (CMP. No. 9360/93), the appeal is

rejected. The appellant will be entitled to get refund of the court-fee paid on the appeal memorandum.

C.M.P. No.9361 of 1993 : In view of the dismissal of C.M.P. No. 9360 of 1993, the petition for condoning the delay in representation, this

petition is dismissed.

C.M.P. No. 9362 of 1993 : In view of the dismissal of C.M.P. No. 9360 of 1993, this petition is also dismissed.

Order accordingly.