A.Kashthuri Ammal v. R.Muthurakku

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 09.06.2023 CORAM THE HONOURABLE MR.JUSTICE C.SARAVANAN and C.M.P.(MD)Nos.12034 of 2022 and 3151 of 2023

1.A.Kashthuri Ammal

2.M.Amirtharajan .. Petitioners in both the C.R.Ps. Versus

1.R.Muthurakku

2.M.Poomayil

3.M.Murali

4.M.Vinothkumar

5.M.Arukumar .. Respondents in both the C.R.Ps. Prayer in C.R.P.(MD)No.2456 of 2022:- Petition filed under Section 115 of C.P.C., against the fair and decreetal order dated 30.09.2022, passed in I.A.No.1 of 2021 in Unfiled A.S.No. .... of 2022 against O.S.No.68 of 2016, on the file of the Subordinate Court, Manamadurai. Prayer in C.R.P.(MD)No.678 of 2023:- Petition filed under Section 115 of C.P.C., against the fair and decreetal order dated 12.09.2022, passed in I.A.No.1 of 2021 in Unfiled A.S.No. .... of 2022 against O.S.No.68 of 2016, on the file of the Subordinate Court, Manamadurai. For Petitioners in both the C.R.Ps. : Mr.VR.Shanmuganathan For R1 in both the C.R.Ps. : Mr.I.Robert Chandrakumar COMMON ORDER C.R.P.(MD)No.2456 of 2022 has been filed against the fair and decreetal order dated 30.09.2022, passed in I.A.No.1 of 2021 in Unnumbered A.S.No. .... of 2022, on the file of the Subordinate Court, Manamadurai, against the judgment and decree of the learned Principal District Munsif, Manamadurai, dated 01.07.2019, passed in O.S.No.68 of 2016.

2.C.R.P.(MD)No.678 of 2023 has been filed against the fair and decreetal order dated 12.09.2022, passed in I.A.No.1 of 2021 in Unnumbered A.S.No. .... of 2022, on the file of the Subordinate Court, Manamadurai, against the judgment and decree of the learned Principal District Munsif, Manamadurai, dated 01.07.2019, passed in O.S.No.68 of 2016.

3.By the impugned order dated 12.09.2022, the learned Subordinate Judge, Manamadurai, has condoned the delay of 718 days in filing the appeal on payment of costs of Rs.2,000/-. The respondent complied with the same. Therefore, the fair and decreetal order dated 30.09.2022 was passed, allowing I.A.No.1 of 2021 in Unfiled A.S.No. ..... of 2022.

4.The petitioners are the defendants 1 and 2 in O.S.No.68 of 2016. The above suit was filed by the first respondent to declare the sale deed, dated 12.06.1995, registered as Document No.784 of 1995, executed in favour of the first petitioner/wife of the second petitioner, on the file of the Sub-Registrar at Thiruppuvanam, as null and void.

5.The said suit was dismissed by the learned Principal District Munsif, Manamadurai, by a judgment and decree, dated 01.07.2019. Aggrieved by the same, the above was filed by the first respondent herein along with I.A.No.1 of 2021 for condoning the delay of 718 days. The said application was allowed by the learned Subordinate Judge, Manamadurai, on 12.09.2022, on payment of costs of Rs.2,000/-. The first respondent had paid the said cost and therefore, on 30.09.2022 the learned Subordinate Judge, Manamadurai, condoned the aforesaid delay and allowed the said I.A. filed by the first respondent.

6.The operative portion of the impugned order dated 12.09.2022, reads as under:- ''7.kDjhuH/Nky; KiwaPl;lhsH jd; mgpltpl;by; mry; tof;F 68/2016 jd;dhy; fdk; khdhkJiu Kjd;ik khtl;l chpikapay; ePjpkd;wk; Kd;G ,e;j epH vjpHkDjhuHfSf;F vjpuhf jhth nrhj;jpid nghWj;J 12.06.1995k; Njjpa fpiua Mtzk; ,y;yh epiyaJ vd tpsk;Gif ghpfhuKk; kw;Wk; epue;ju cWj;Jf;fl;lis ghpfhuk; Ntz;b jhf;fy; nra;ag;gl;ljpy; Nkw;gb mry; tof;F 58/2016y; 01.07.2019k; Njjp js;Sgb nra;J jPHg;gspf;fg;gl;ljhfTk; mry;tof;fpd; jPHg;Giu kw;Wk; jPHg;ghiz ngw jkJ jug;gpy;

23.07.2019k; Njjp tpz;zg;gpf;fg;gl;L rhd;wpl;l efy; 24.07.2019k; Njjp ngwg;gl;lL Nky;KiwaPL nra;a NkY}hpy; cs;s mkyd; vd;w tof;fwpQhplk; nfhLj;jjhfTk;> kDjhuH jhd; fLikahd kQ;rs; fhkhiy Nehahy; ghjpf;fg;gl;ljhy; jd;dhy; Fwpj;j fhyj;jpy; Nky;KiwaPL jhf;fy; nra;a ,ayhky; fle;j 30.08.2019k; Njjp Nky;KiwaPL jhf;fy; nra;jjhfTk; mjd; V ek;gH 108 & 109 of 2019 vz;zhf Nkw;gb 30.08.2019 Njjpad;W jd;dhy; jhf;fy; nra;ag;gl;l Nky;KiwaPL rpy fhuzq;fSf;fhf jpUg;gg;gl;ljhfTk; kPz;Lk;

05.09.2019k; Njjp Nky;KiwaPl;il rhpnra;J jhf;fy; nra;a kPz;Lk;

07.09.2019k; Njjp Nky;KiwaPL jpUg;gg;gl;ljhfTk; ePjpkd;wj;jpypUe;J ngwg;gl;l jPHg;Giu rhd;wpl;l efy; kw;Wk; jpUg;gg;gl;l Nky;KiwaPL kw;Wk; mjd; Mtzq;fs; tof;fwpQH mYtyfj;jpy; NtW Mtzq;fSld; fye;Jtpl;ljhfTk;> tof;F Nfhg;ig NjbAk; fpilf;fhjjhy; kPz;Lk; mry; tof;F vz; 68/2016d; jPHg;G kw;Wk; jPHg;ghizapd; rhd;W efy; ngw;W jhf;fy; nra;jjpy; 718 ehl;fs; fhyjhkjk; Vw;gl;ljhfTk; $wpAs;shH.

8.kDjhuH jug;G mgpltpl;by; $wpAs;s Nkw;nrhd;d rq;fjpfis ep&gpf;Fk;

tifapy;

vt;tpj

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rhd;whtzq;fSk; Kd;dplg;gltpy;iy. vdpDk; kDjhuH/Nky;KiwaPl;lhsH jug;gpw;F xU tha;g;gspf;Fk; nghWl;L ,k;kDtpid epge;jidAld; mDkjpf;fyhk; vd ,e;ePjpkd;wk; jPHkhdpf;fpd;wJ. Kbthf ,k;kD epge;jidAld; mDkjpf;fg;gLfpd;wJ. kDjhuH/Nky;KiwaPl;lhsH>

vjpHkDjhuHfs;/vjpHkDjhuHfSf;F Neubahf &.2000/- njhifia 22.09.2022k; Njjpf;Fs; nrYj;j Ntz;Lk; vd;Wk;> Nkw;gb epge;jidia epiwNtw;w jtWk;gl;rj;jpy; ,k;kD js;Sgb nra;ayhFk; vd jPHkhdpj;J cj;jputplg;gLfpwJ. ,k;kD miof;f tha;jh 23.09.2022.''

7.Thereafter, pursuant to the compliance made by the first respondent, an order dated 30.09.2022, came to be passed in I.A.No.1 of 2021 condoning the delay. The petitioners are aggrieved by the aforesaid impugned orders.

8.It is submitted by the learned counsel for the petitioners that condonation of delay is neither automatic nor routine and the person, who seeks to condone the delay, must explain each day delay with cogent and sufficient reasons. It is further submitted that the first respondent has miserably failed to discharge the burden, which is required to be discharged under Section 5 of the Limitation Act.

9.I have considered the arguments advanced by the learned counsel for the petitioners and perused the materials available on record.

10.The first respondent/plaintiff suffered an adverse judgment and decree in the hands of the Trial Court in O.S.No.68 of 2016 on 01.07.2019. The specific case of the first respondent that the sale deed, dated 12.06.1995, executed in favour of the first petitioner/wife of the second petitioner, as null and void.

11.Although there is a delay in filing the appeal, Courts are expected to be liberal. The first respondent is entitled to work out his remedy against the judgment and decree of the Trial Court, dismissing the suit. No prejudice will be caused to the petitioners, if the delay is condoned and the Appeal Suit is directed to be numbered and disposed on merits.

12.At this juncture, the learned counsel for the first respondent, on instructions, submitted that during the pendency of C.R.P.(MD)No.2456 of 2022, the Appeal Suit has been numbered as ''A.S.No.18 of 2022''.

13.In the light of the above, C.R.P.(MD)No.678 of 2023 is dismissed with a direction to the learned Subordinate Judge, Manamadurai, to dispose A.S.No.18 of 2022 on merits and in accordance with law within a period of six months from the date of receipt of a copy of this order. No costs. Consequently, connected Miscellaneous Petition is closed.

14.In view of the above, no further order is required to be passed in C.R.P.

(MD)No.2456 of 2022. Accordingly, it is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed. NCC : Yes/No Index : Yes/No

09.06.2023 Internet : Yes/No smn2 To The Subordinate Judge, Manamadurai.

C.SARAVANAN, J. smn2 Common Order made in

09.06.2023