PACHIYAMMAL Vs. DURAISAMY

JUDGEMENT

(1.) Law of Limitation being a substantive law, the Courts are bound to follow the principles, while condoning the delay, which is otherwise enormous. Huge delay cannot be condoned in a routine manner by the Courts. Courts have to exercise the discretionary powers judiciously and cautiously and in the event of exercising the discretionary power to condone the enormous delay, then the reasons must be recorded. In the absence of any acceptable reasons, huge delay cannot be condoned at all. Law of limitation being a substantive law, the rule is to file appeals in time. Condoning the delay by exercising a discretionary power is an exception. Thus, the exception cannot be made as a rule as if the delay in huge can be condoned in a routine manner. This being the basic principles to be adopted by the Courts for the purpose of condoning the huge delay, this Court is of an opinion that the delay of 455 days, which is improperly explained is to be construed as an uncondonable delay.

(2.) Reasons stated in the present petition for condoning the delay is narrated in paragraphs 4 and 5 of the affidavit filed in support of the miscellaneous petition. In paragraph 4, the petitioner has stated that she enquired about the status of her case and her Advocate used to say that the case is pending and he would call her, as and when required. The very statement is questionable in view of the fact that the petitioner herself participated in the trial and defended her case throughout the trial. Further, it is stated in the affidavit that the petitioner was under the impression that the suit was pending. While so, she came to know that the respondent has filed execution proceedings. In the above case, after receipt of notice in the execution petition, she contacted her advocate and enquired about the issue of letter. She came to know that the suit was decreed on 22.12.2017. Except by blaming the Advocate, in respect of the informations provided by the learned counsel, the petitioner has not furnished any acceptable ground for the purpose of condoning the delay of 455 days in filing the appeal suit. In Paragraph 5 of the affidavit, the petitioner has stated that she was in financial crisis and could not able to mobilize funds for the purpose of paying the Court fee and for filing the appeal suit before the High Court. The insufficient funds cannot be considered as a valid ground for the purpose of condoning a huge delay. Even in such cases, the appeals can be filed in time and within the permissible time limit. The Court fee can be paid or the petitioner, if pauper, then appropriate application can be filed. Contrarily, the reason of insufficient funds cannot be a ground to condone the delay of 455 days in filing the appeal suit.

(3.) The legal principles to be followed for condoning the delay is well settled and this Court also considered the said principles in C.M.P.Nos.8358 and 8359 of 2018 in AS.SR.No.32087 of 2018 dated 09.12.2019 and the relevant paragraphs are extracted as under: