Order — F.M Ibrahim Kalifulla, J.

This is an application filed on behalf of the petitioner who was the defendant in the suit in O.S No. 7414 of 1996, for condoning the delay of 431 days in filing the first appeal. The suit was laid by the respondent herein for declaration of title as well as for recovery of possession of the suit schedule property which is a Flat, namely, Flat No. 1.D, situate in the first floor of the building “Marble Arch”, No. 4 & 5, Wallers Avenue East, Mylapore, Madras-4 within the Corporation Division No. 101.

2. The petitioner is represented herein by his Power of Attorney Holder, one Tmt. Rukmani. According to the petitioner, after the above suit was decreed in favour of the respondent on 2-8-1999, the counsel was instructed to apply for certified copies of the Judgment and Decree, that the petitioner who is in abroad, having given power of attorney in favour of his agent, it was left to the Power Agent to follow up further, that the Power Agent being an aged person, was suffering from Diabetes and Hypertension, that she got admitted in a hospital at Vellore for treatment, that the counsel who informed her earlier that after the receipt of the certified copies of the Judgment and Decree would contact her, did not send any communication, that the Power Agent who was admitted in the hospital on 1-11-1999 was discharged only on 31 -12-1999, that even thereafter, she was advised to take bed rest, that due to her ill health, at the insistence of her son, she had to stay at Vellore for more than a year from 1-1-2000 for the purpose of consulting the local doctors, that she also suffered from Arthritis which prevented her free movement, that in the mean time, when she contacted the counsel at Chennai, she was informed that the order copy was not made ready, that subsequently, at the instance of the respondent, Court Bailiff went to the suit property for taking delivery the tenant of the petitioner who was in possession of the suit schedule property intimated the Power Agent and thereafter only she came to know that there was some problem in getting the certified copies of the Judgment and Decree.

3. According to the Power Agent of the petitioner, when she contacted the counsel, she was not getting proper information and therefore, she sought the help of the tenant himself who is an Advocate to find out the fate of the copy application which also did not yield necessary result, that thereafter, as she pressurized the staff at the office of her counsel for the order copy, a fresh application was made on 14-12-2000 and the order copy was thereafter obtained on 20-3-2001 which resulted in the filing of the appeal with a delay of 431 days.

4. According to the petitioner, if the delay is not condoned, serious prejudice will be caused to the petitioner, while no prejudice will be caused to the respondent. The petitioner also filed a supporting affidavit of the counsel who appeared in the Court below and in the said affidavit, the counsel would state that after the pronouncement of the Judgment in the suit on 2-8-1999, he asked his Clerk one Saravanan to apply for the certified copies of the Judgment and Decree along with bill of costs, that he was under the impression that his signature was obtained for making the necessary copy application, that at that time, he was informed that the respondent had gone abroad and the petitioner did not contact him, that much later, a representative of the respondent met the counsel and asked for the certified copies of the Judgment and Decree and only thereafter, he found out that no copy application had been made. According to the counsel, his advocate Clerk Saravanan also left the Office almost a year before the representative of the respondent met him.

5. The application is resisted by the respondent. A detailed counter affidavit has been filed on behalf of the respondent through his Power Agent who would state that after the pronouncement of the Judgment and Decree in O.S 7414 of 1996, an execution petition in E.P.151 of 2000 was filed, in which, notice was served on the petitioner herein, that the petitioner failed to appear in the execution Court, whereupon, delivery_was ordered by the execution Court. According to the respondent, when the Bailiff was accompanied by him for the execution of the warrant of possession, there was an obstruction by one Mr. Sundaravadanam, Advocate and therefore, delivery could not be effected. The respondent contended that there is no bona fide in the claim of the petitioner in this application and therefore, the application deserves to be dismissed.

6. Mr. V. Raghavachari, learned counsel appearing for the petitioner, by relying, upon the decisions reported in

AIR 1987 S.C 1353 = 100 L.W 676 (Collector, Land Acquisition, Anantnag & Another v. Mst. Katiji & others);

2000 (3) CTC 727 = 200 3 L.W 938 C. Subramaniam v. Tamil Nadu Housing Board);

1998 (2) CTC 533 = 1990 1 L.W 739 (N. Balakrishnan v. M. Krishnamurthy.);

AIR 2000 S.C 1221 = 2000 3 L.W 231; G.P Srivastava v. R.K Raizada & others) and

AIR 1984 S.C 41 (Smt. Lachi Tewari & others v. Director of Land Records and others) and

AIR 1985 NOC 14 (Delhi) (Ram Parshad & Others v. Smt. Poornima), contended that in matter of condonation of delay, a liberal approach should be made, that acceptance of explanation should be the rule and refusal the exception, that for the fault of the counsel in not making the copy application in time, the petitioner should not be penalized and that by condoning the delay, no prejudice is going to be caused to the respondent, while on the other hand, it would deprive the petitioner of his valuable right of challenging the Judgment and Decree once and for all which related to the rights of the parties in respect of a valuable immoveable property.

7. On the other hand, Mr. P. Ranganatha Reddy for M/s. King & Patridge, appearing for the respondent would contend that there was no bona fide at all in the case of the petitioner in moving the present application for condoning the delay of enormous delay of more than a year and since sufficient cause has not been shown covering the entire period of delay, the application is liable to be rejected.

8. Having heard the learned counsel for the respective parties, we find that the delay involved in the present application in filing the first appeal is of the order of 431 days. Before considering the present application for condonation of delay, we feel it appropriate to set out the principles which are to be borne in mind while considering the application for condonation of delay as set out in the various judgments of the Hon'ble Supreme Court as well as the Division Bench of our High Court.

9. In the judgment reported in 1998 (2) CTC 533 (N. Balakrishnan v. M. Krishnamurthy.), the position has been set out as under in para 14:

“14. It must be remembered that in every case of delay there can be some lapse ‘on the part of the litigant concerned.

That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is put-forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation……” Underlining is ours)

10. In the Judgment reported in 2001 (6) SCC 176 M.K Prasad v. P. Arumugam.), it has been held as under in para 9.

“9. Again in State of W.B v. Administrator, Howrah Municipality and G. Ramegowda, Major v. Special Land Acquisition Officer this Court observed that the expression “sufficient cause” in Section 5 of the Limitation Act must receive a liberal construction so as to advance substantial justice and generally delays be condoned in the interest of justice where gross negligence or deliberate inaction or lack of bona fides is not imputable to the party seeking condonation of delay. Law of limitation has been enacted to serve the interests of justice and not to defeat it. Again in N. Balakrishnan v. M. Krishnamurthy.5 this Court held that acceptability of explanation for the delay is the sole criterion and length of delay is not relevant, in the absence of anything showing mala fide or deliberate delay as a dilatory tactic, the court should normally condone the delay….” (Underlining is ours)

11. In a recent Judgment of the Honourable Supreme Court reported in 2002 (3) SCC 195 = 2002 3 L.W 417 (Ram Nath Sao @ Ram Sahu & Others v. Gobardhan Sap & Others), the position has been succinctly set out in para 12 which reads as under:

“12. …… Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner. …..” (Underlining is ours)

12. In the Division Bench Judgment of our High Court, in the Judgment reported in 2000 (3) CTC 727 = 2000 3 L.W 938 (C. Subraniam v. Tamil Nadu Housing Board rep. by its Chairman And Managing Director), the position has been stated as under in para 31:

“31. To turn up the legal position, (1) the work “sufficient cause” should receive liberal construction to do substantial justice; (2) what is “sufficient cause” is a question of fact in a given circumstances of the case; (3) it is axiomatic that condonation of delay is discretion of the Court; (4) length of delay is no matter, but acceptability of the explanation is the only criterion’ (5) 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 in such finding unless the discretion was exercised on wholly untenable or perverse; (6) The rules of limitation are not meant to destroy the rights of the parties but they are meant to see that the parties do not resort to dilatory tactics to seek their remedy promptly; (7) Unless a party shows that he/she is put to manifest injustice or hardship, the’ discretion exercised by the lower Court is not liable to be revised; (8) If the explanation does not smack of mala fides or it is put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor; (9) If the delay was occasioned by party deliberately to gain time, then the court should lean against acceptance of the explanation and while condoning the delay, the Court should not forget the opposite party altogether.” (Underlining is ours)

14. The Judgment relied upon by the learned counsel for the petitioner reported in AIR 2000 SC 1221 = 2000 3 L.W 231 (G.P Srivastava v. R.K Raizada & others) was a case where a party came forward with an application to set aside the ex parte proceedings within the statutory time specified which was rejected on the ground that the medical certificate produced to support the claim of sickness was issued by a private doctor and not by a government doctor which was frowned upon by the Hon'ble Supreme Court while allowing the appeal. The said judgment, therefore, can have no application to the case on hand. Equally, the other judgment, reported in AIR 1984 SC 41 (Smt. Lachi Tewari & others v. Director Of Land Records & Others) related to a Writ Petition which was dismissed for default, wherein, an application came to be filed within ten days of such dismissal on the ground that the counsel could not represent the case as he was engaged in some other case before some other Court and that when the matter was called, a pass over was requested on behalf of the counsel and it was in those circumstances, when the application for restoration was rejected by the High Court, the Hon'ble Supreme Court, taking note of the above facts, was pleased to set aside the order of, the High Court.

14-A. In yet another Division Bench Judgment reported in 1990 (1) LLN 457 (Tamil nadu Mercantile Bank Ltd. Tuticorin v. Appellate Authority Under The Tamil Nadu Shops And Establishments Act, Madurai And Another), the principles relating to rule of limitation have been discussed and the legal position has been stated by His Lordship Mr. Justice M. Srinivasan, as he then was, in paragraphs 14 and 17 which read as under:

“14. ……..If a litigant chooses to approach the Court long after the time prescribed under the relevant provisions of the law, he cannot say that no prejudice would be caused to the other side by the delay being condoned. The other side would have in all probability destroyed the records thinking that the records would not be relevant as there was no further proceeding in the matter. Hence to view a matter of condonation of delay with a presupposition that no prejudice will be caused by the condonation of delay to the respondent in that application will be fallacious. In our view, each case has to be decided on the facts and circumstances of the case. Length of the delay is a relevant matter to be taken into account while considering whether the delay should be condoned or not. It is not open to any litigant to fix his own period of limitation for instituting proceedings for which law has prescribed periods of limitation.

“17. …..Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long time, it cannot be presumed to be non-deliberate delay, and in such circumstances of the case, he cannot be heard to plead that substantial justice deserved to be preferred as against technical considerations. We are of the view that the question of limitation is not merely a technical consideration. Rules of limitation are based on principles of sound public policy and principles of equity. Is a litigant liable to have a Damocles' sword hanging over his head indefinitely for a period to be determined at the whims and fancies of the opponent?” (Underlining is ours)

15. On a conspectus reading of the above principles set out in the various judgments, it is well settled that a liberal approach should be extended while considering the application for condonation of delay. Sufficient caution has been exhibited to note that wherever there is lack of bona fides or attempt to hood-wink the Court by the party concerned who has come forward with an application for condonation of delay, in such cases, no indulgence should be shown by condoning the delay applied for. It is also clear to the effect that it is not the number of days of delay that matters, but the attitude of the party which caused the delay. In other words when the Court finds that the party who failed to approach the Court within the time stipulated comes forward with an explanation for condoning the delay, the Court if satisfied that the delay occasioned not due to the deliberate conduct of the party, but due to any other reason, then by sufficiently compensating the prejudice caused to the other side monetarily, the condonation of delay can be favourbly ordered.

16. As held by His Lordship Mr. Justice M. Srinivasan, as he then was, in the Division Bench Judgment reported in 1990 (1) LLN 457 (Tamil Nadu Mercantile Bank Ltd. Tuticorin v. Appellate Authority Under The Tamil Nadu Shops And Establishments Act, Madurai And Another), the rules prescribing the period of limitation have to be obeyed by the concerned party and in order to get over such period prescribed, sufficient explanation should be tendered. His Lordship was pleased to hold that question of limitation is not merely a technical consideration but based on principles of sound public policy as well as equity and that a litigant cannot be expected to have a Damocles' sword hanging over his head indefinitely for a period to be determined at the whims and fancies of the opponent.

17. By keeping the above legal principles in our mind, when we consider the case of the petitioner, at the out set, it will have to be stated that the averments contained in the affidavit sworn to by the Power Agent on behalf of the petitioner, in regard to the steps taken for pursuing the further proceedings after the delivery of Judgment on 2-8-1999 diametrically varies with the averments contained in the affidavit sworn to by one T.V Sekar, Advocate who was the counsel who appeared for the petitioner originally in the lower Court proceedings. In para 3 of the said affidavit sworn to by T.V Sekar in the month of November, 2002, it has been stated as under:

“3. I was under the impression that he had taken my signature and had applied for it. At that time I got information that the defendant had gone abroad and the defendant did not contact me. Much later a representative of the defendant met me and asked for the copy of the certified copy of the judgment and decree. When I checked up my records I found that the then clerk by oversight had not applied at all. Due to health problems he left my service almost a year before the representative the defendant met me and I understand he had gone back to his native village near Arakonam.”

Thus the counsel who appeared for the petitioner makes it categoric that neither the petitioner nor his Agent approached him after the Judgment dated 2-8-1999 till the month of December 2000 when a fresh copy application was made.

18. While that be so, the petitioner would claim that immediately after the judgment was delivered on 2-8-1999, she instructed the counsel to apply for a copy of the judgment and that it was confirmed to her that such application was really made. She also claimed that even thereafter, while she was staying at Vellore for taking treatment for her illness, she was constantly in touch with the counsel at Madras to find out as to the progress in issuing the certified copies of the judgment and decree.

The fact remains that the copy application came to be filed for the first time only on 14-12-2000. Admittedly, in the execution proceedings preferred by the respondent, delivery came to be ordered as early as on 8-7-2000. According to the respondent, after the delivery was ordered, his Power Agent accompanied by the Bailiff went to the suit schedule property for taking possession which was objected to by the obstructer who filed E.A No. 3919 of 2000. The petitioner in her affidavit stated that she came to know that no copy application was filed, only after she was informed by her tenant who obstructed the delivery of possession. When the obstruction pursuant to the delivery ordered in the execution petition was in the month of July 2000, it is not known as to why no steps were taken between July 2000 and 14-12-2000 when the copy application was filed for the first time on behalf of the petitioner. It will have to be stated that the obstructer is none other than the tenant of the petitioner who is a practicing Advocate who also has sworn to an affidavit in this C.M.P on 19-12-2002 and in the said affidavit it is shown as though the said Mr. Sundaravadanam is also representing the petitioner along with the present counsel appearing for the petitioner as disclosed in the docket sheet of the said affidavit. Therefore, it is crystal clear that the tenant of the petitioner Mr. Sundaravadanam was very much assisting the petitioner. According to Mr. Sundaravadanam, he was inducted as a tenant in respect of the petition premises by virtue of the rental agreement dated 18-1-1999 i.e long before the judgment and decree came to be rendered which was on 2-8-1999. The petitioner has produced two medical certificates issued by Sandhya Hospital, Vellore. One of the certificates is dated 4-1-2001 and the other is not dated. The undated medical certificate shows that the Power Agent of the petitioner was hospitalized between 1-11-1999 and 31 -12-1999 while the one dated 4-1 -2001 states that she was only an outpatient from 1 -1 -2000 for the treatment of Acid Peptic decease. Therefore, after 1-1-2000, she was free to move from Vellore to find out about the steps taken by the counsel who appeared for the petitioner after the delivery of the judgment dated 2-8-1999. All these above factors only go to show that the Power Agent of the petitioner who was fully aware of the judgment and decree dated 2-8-1999 did not deliberately bother to take any steps for pursuing the further proceedings of filing the appeal.

19. One other reason which prevents us from showing any indulgence to the petitioner is the utter falsehood made on behalf of the petitioner by the Power Agent in her affidavit filed in support of the application. According to her, the Power of Attorney was executed in her favour on 6-5-1998. She also claims that she was regularly contacting the counsel and taking care of the proceedings. She would also claim that after the delivery of the judgment dated 2-8-1999, she instructed the counsel to apply for the certified copies of the judgment and decree, and that the counsel also informed that necessary application has been made. On the other hand, the counsel Mr. T.V Sekar, in his affidavit sworn to in the month of November, 2002 in paragraph 3, which has been extracted in the earlier part of this order shows that the petitioner never contacted him after the judgment and that his representative (apparently referring to the Power Agent) contacted him much later and asked for a certified copy of the judgment and decree and it was at that point of time, when he checked up, he detected that the clerk failed to apply for the copy. According to the counsel, thereafter a copy application was made and certified copies of judgment and decree were obtained. Therefore, going by the averments contained in the affidavit of the counsel, the veracity of which can be reasonably relied upon, it transpires that the Power Agent contacted the counsel only in the month of December 2000. Therefore, if that is the only inference possible, then it will have to be held that all other averments contained in the petitioner's affidavit sworn to by the Power Agent is totally devoid of truth and has been deliberately made for the purpose of this application. We have to therefore hold that the petitioner has not come forward with clean hands while seeking for condonation of delay of more than a year and in such circumstances, the bona fides of the petitioner proved to be demonstrably lacking. Therefore, when there is total lack of bona fides on the part of the petitioner while coming forward with the present application, going by the principles set out in the various judgments referred to above, we are of the view that this case falls within the exception to the rule and does not deserve the liberal approach formula in matters relating to condonation of delay. We are therefore not satisfied with the reasons adduced by the petitioner while seeking for condonation of delay of 431 days in filing the first appeal. We, therefore decline to condone the delay and accordingly dismiss the application with costs of Rs. 1000/-.

VCJ/VCS