THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM CMP No.13806 of 2017 in CMA SR No.90140 of 2016 order delay case

CMP No.13806 of 2017
in CMA SR No.90140 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 18-01-2021
Coram
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
CMP No.13806 of 2017
in
CMA SR No.90140 of 2016
R.Badrayyan .. Petitioner/Appellant
vs.
1.T.S.Rajendran
2.Smt.S.Vijaya Rani
3.Smt.S.Chanthini
4.T.S.Devarajan
5.Mrs.Manickam
6.Divya
7.Kausalya
8.Mallikerjun
9.Badrammal
10.Rajammal
11.Kanaga Rathinam
12.Iyyappan
13.Sundaraj
14.Hari
15.Alagirisamy .. Respondents/Respondents
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CMP No.13806 of 2017
in CMA SR No.90140 of 2016
PRAYER: CMP No.13806 of 2017 is filed under Section 5 of the
Limitation Act, to condone the delay of 1,453 days in filing the above Civil
Miscellaneous Appeal.
CMA SR No.90140 of 2016 is preferred against the judgment and decree
passed in A.S.No.48 of 2011 passed by the Learned I Additional District
Judge, Coimbatore dated 31.08.2012 by remanding the matter back after
setting aside the judgment and decree passed by the Learned II Additional
Sub Judge, Coimbatore in O.S.No.606 of 2005 dated 22.12.2010.
For Petitioner : Mr.C.R.Prasanan
For Respondents : No Appearance
O R D E R
Uncondonable delay cannot be condoned in a routine manner. Law
of limitation is substantive. Litigations / appeals are expected to be filed
within the period of limitation as contemplated under the Statutes. Rule is to
follow limitation. Condonation of delay is an exception. Exceptions are to
be exercised discreetly, if the reasons furnished are genuine and acceptable.
The Courts are vested with the discretion to condone the delay. This does
not mean that enormous delay are to be condoned mechanically.
Undoubtedly, if the reasons are candid and convincing, then the Courts are
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CMP No.13806 of 2017
in CMA SR No.90140 of 2016
15. In view of the reasons stated above, this Court has no
hesitation in arriving a conclusion that the reasons stated by the petitioner
for condoning the long delay of 1,453 days are neither candid nor
convincing and consequently, the Civil Miscellaneous Petition in
C.M.P.No.13806 of 2017 stands dismissed and consequently,
C.M.A.SR.No.90140 of 2016 is rejected at the SR Stage itself. However,
there shall be no order as to costs.
18-01-2021
Speaking Order/Non-Speaking Order.
Internet : Yes/No.
Index: Yes/No.
Svn/Kak
To
1.The I Additional District Judge,
Coimbatore.
2.The II Additional Sub Judge,
Coimbatore.
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CMP No.13806 of 2017
in CMA SR No.90140 of 2016
14. However, the Appellate Court on remand, shall consider
whether remand is necessary or not. Order 41 Rule 23A stipulates remand of
cases. Rule 24 contemplates that the First Appellate Court has to decide the
issues finally, if the documents and evidences are available. Thus, certain
lapses by the trial Court or non-appreciation of evidence or documents may
not be a good ground for remanding the matter back to the trial Court as
such remand would cause longevity to litigations, further, would cause
inconvenience. Thus, the Courts are expected to remand the matter only
when it is absolutely required and it is not possible for the Appellate Court
to decide the issues finally or the suit was decided on preliminary issues.
The Trial Court is also expected to decide the issues uninfluenced by the
observations made by the Appellate Court after remand. Equally the Courts
are not expected to record unnecessary findings if a decision is taken to
remand the matter back to the trial Court, as such findings would affect or
influence the trial Court, while dealing with the matter independently.
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