R. Nalla Gounder vs P. Rajapandian

R. Mala, J.—Heard the learned counsels appearing on either sides.

The petitioner herein who is the defendant in O.S. No. 244 of 2004 has come forward with the present application to condone the delay of 1231 days in preferring the appeal against the judgment and decree dated 28.06.2010 made in O.S. No. 244 of 2004 on the file of the Additional District and Sessions Judge, Fast Track Court No. 2, Coimbatore.

The learned counsel appearing for the petitioner would submit that the respondent herein as plaintiff has filed the suit in O.S. No. 244 of 2004 for recovery of the advance amount paid on the sale agreement entered into between the parties. After contest, the suit was decreed against which the petitioner herein had filed the present appeal. The learned counsel would further submit though the suit was decreed on 28.06.2010, since the petitioner is aged about 77 years and is suffering from some ailments, he is unable to prefer the appeal in time. The reasons for the delay have been set out in paragraph 4 of the affidavit filed in support of the application. So, the learned counsel prayed for condonation of delay of 1231 days in preferring the appeal.

Resisting the same, the learned counsel appearing for the respondent would submit that the petitioner has not come to the Court with clean hands. The suit was decreed on 28.06.2010 and he filed the copy application in CA. No. 6228 of 2010 and obtained a copy of the decree on 20.08.2010. However, after obtaining the copy of the decree, the petitioner neither preferred an appeal nor settled the claim as decreed by the Trial Court. Hence, the respondent filed execution petition in EPR. No. 9 of 2013, for creating charge over the property. But in the execution proceedings, the petitioner herein introduced third party for objecting the EP proceedings. Further, the petitioner entered appearance in the EP proceedings on 30.09.2013. However suppressing all those facts, the petitioner again obtained a copy of the decree and has now come forward with the present appeal along with an application to condone the delay in preferring the appeal. The learned counsel would further submit that suppression of fact itself could be a reason for dismissal of the application. To support his contention, the learned counsel for the respondent relied upon the decision reported in Mahanagar Telephone Nigam Limited Vs. State of Maharashtra and Others, (2013) 5 ABR 1224 : (2013) 9 AD 387 : AIR 2013 SC 3568 : (2013) 10 JT 594 : (2013) 4 RCR(Civil) 877 : (2013) 8 SCALE 739 : (2013) 9 SCC 92 and prayed for dismissal.

Considered the rival submissions made by both sides and perused the typed set of papers.

The petitioner herein as plaintiff has filed the suit for recovery of advance amount paid on the basis of the sale agreement dated 12.06.1995. The said suit was decreed on 28.06.2010 and against the said judgment and decree the petitioner has come forward with the present appeal with an application to condone the delay of 1231 days citing health reasons. It is appropriate to incorporate paragraph 4 of the affidavit.

"4. I humbly submit that in the mean time due to age factor I was suffering from Osteoarthritis in the both knees and in view of the same I was bed ridden and I could not able to move one place to another place. I further submit that in the year of 2013 I was served summons in the Execution Proceedings in relation to the suit filed by the respondent and there after I was contacted the lower court counsel in the month of December 2013 to know about the further proceedings of the case filed by the respondent and my lower court counsel advised to file appeal against the Judgment and Decree passed in O.S. No. 244 of 2004. Immediately I was instructed my lower court counsel to file copy application and my lower court counsel was filed the same on 16.12.2013 and the same has been ready on 12.02.2014."

Though the petitioner has contended that he was suffering from severe ailments, he has not filed any documents to substantiate the same. Per contra, the learned counsel for the respondent herein has relied upon the decision reported in Mahanagar Telephone Nigam Limited Vs. State of Maharashtra and Others, (2013) 5 ABR 1224 : (2013) 9 AD 387 : AIR 2013 SC 3568 : (2013) 10 JT 594 : (2013) 4 RCR(Civil) 877 : (2013) 8 SCALE 739 : (2013) 9 SCC 92 , wherein it was held that the petitioner must approach the Court with clean hands and if there is deliberate concealment of material facts and misleading statements, then the application is liable to be rejected. It is appropriate to incorporate paragraph 24 of the said decision:

"24. The judgment in State of Karnataka v. Y. Moideen Kunhi (supra) on which reliance has been placed by Shri Harin P. Raval contains reiteration of the settled principles of law that the Court should be liberal in exercising power under Section 5 of the Limitation Act and cognizance can be taken of the impersonal character of the Government as also in efficiency, lethargy and tardiness in the functioning of the State and its agencies which, at times, results in delay and that while deciding the application for condonation of delay, the Court should keep in mind the larger public interest. However, that proposition cannot be invoked in the appellant''s case because it has been found guilty of suppression of facts and making misleading statement."

In the instant case, the suit was decreed on 28.06.2010 and the petitioner filed the copy application in CA. No. 6228 of 2010 and obtained a copy of the decree on 20.08.2010. However, after obtaining the copy of the decree, the petitioner neither preferred an appeal nor settled the claim as decreed by the Trial Court. However, after receiving the notice in the execution petition filed by the respondent in EPR. No. 9 of 2013, for creating charge over the property, the petitioner again obtained a copy of the decree and has now come forward with the present appeal with a delay of 1231 days. In the affidavit filed in support of the present application, the petitioner has not stated anything about the filing of the earlier copy application and about his appearance before the Court in the EP proceedings.

As per the dictum laid down by the Hon''ble Apex Court in the decision reported in N. Balakrishnan Vs. M. Krishnamurthy, (1998) 6 AD 465 : AIR 1998 SC 3222 : (1998) 2 CTC 533 : (2008) 228 ELT 162 : (1998) 6 JT 242 : (1999) 121 PLR 462 : (1998) 5 SCALE 105 : (1998) 7 SCC 123 : (1998) 1 SCR 403 Supp : (1998) AIRSCW 3139 : (1998) 7 Supreme 209 , it is a well settled principle that the length of delay is immaterial so long as the delay is properly explained. It is appropriate to incorporate paragraph 10 of the said judgment.

"10. It is axiomatic that condonation of delay is a matter of discretion of the court Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on whole untenable grounds or arbitrary or perverse. But it is a different matter when the first cut refuses to condone the delay. In such cases, the superior cut would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court."

Considering the fact of the present case in the light of the above decision, as already stated, the petitioner in paragraph 4 of the affidavit filed in support of the application has not given sufficient reasons for condonation of the delay in preferring the appeal. Hence, I am of the considered view that the present application is liable to be dismissed as devoid of merits. Accordingly, the petition stands dismissed.