JUDGMENT
AR. Lakshmanan, J.
1. For the sake of convenience, the parties are referred to as they are arrayed in the Letters Patent Appeal.
2. L.P.A. No. 69 of 1994 is filed by the appellants/plaintiffs against the order of K. Swamidurai, J., in C.M.P. No. 15486 of 1993 in A.S.S.R. No. 97114 of 1992 (now numbered as Appeal No. 127 of 1994) dated 12.1.1994 condoning the delay of 3,670 days in filing the appeal against the judgment and final decree dated 6.10.1982 in I.A. No. 19362 of 1980 in O.S. No. 2443 of 1969 on the file of the Third Assistant Judge, City Civil Court, Madras. C.M.P. No. 6549 of 1995 has been filed by the appellants to receive the documents filed as additional evidence. Appeal No. 127 of 1994 has been filed by the respondents against the final decree passed in I.A. No. 19362 of 1980 in O.S. No. 2433 of 1969 on the file of the Third Assistant Judge, City Civil Court, Madras.
3. A preliminary decree was passed in the suit on 6.9.1972 on a memo of compromise. The appellants filed a petition under Order 26, Rules 13 and 14 of the Code of Civil Procedure for passing a final decree in accordance with the preliminary decree. The respondents did not file any counter. An Advocate Commissioner was appointed and he submitted a report Ex. C-1. Under the preliminary decree, items 1 to 3 of the plaint ‘A’ Schedule are to be equally divided and one such share shall be allotted to the appellants. The 1st defendant PR. Ramanatha Mudaliar died after the filing of the final decree application and the respondents herein were impleaded as his legal representatives, in the final decree proceedings. Since the respondents did not file any objections to the report of the Commissioner, the trial court accepted the Commissioner’s recommendation so far as the division of item No. 1 of the plaint ‘A’ Schedule is concerned. So far as item Nos. 2 and 3 of the plaint ‘A’ Schedule are concerned, it is not known why both parties did not seek division of the same according to the preliminary decree, which provides for division of these two items also. Therefore, the trial court gave liberty to both parties to file a separate final decree application for the division of these two items.
4. After considering the other points, the trial court passed a final decree as follows:
Item No. 1 of plaint ‘A’ Schedule will be divided into portions A and B in Exs. C-1 and C-2 and portion VA’ is allotted to the respondents and portion VB’ is allotted to the petitioners. Exs. C-1 and C-2 will form part of the final decree. The petitioners are entitled to Rs. 5,845 from the respondents and the share allotted to the respondents is charged for the payment of this amount. The petitioners and the respondents are given liberty to file a separate final decree application for division of items 2 and 3 of plaint ‘A’ Schedule and for apportioning the mortgage amount due as per Clause 5 of the preliminary decree. The petitioners are also given liberty to file a separate application for realisation of the amounts claimed by them in the memo of calculation in a separate proceedings. The parties will bear their own costs. Time for deposit of non-judicial stamp one month.
5. In pursuance of the final decree, the appellants filed E.P. Nos.1803 and 1804 of 1992 on 7.7.1992. In the meantime, the respondents on 23.1.1992 sent a notice calling upon the appellants to settle the matter amicably, to which the appellants sent a reply on 12.2.1992 stating that the final decree was passed on 6.10.1982. Thereafter, the respondents filed an appeal in A.S.S.R. No. 97114 of 1992 and also C.M.P. No. 15486 of 1993 before this Court to condone the delay of 3,670 days in filing the first appeal against the final decree passed on 6.10.1982. The affidavit filed in support of C.M.P. No. 15486 of 1993 proceeds on the basis that the respondents had knowledge of the final decree proceedings only on 12.2.1992 when the appellants sent the reply to the notice issued by the respondents’ counsel, and since the delay in filing the appeal had occurred in the abovesaid circumstances, the delay has to be condoned.
6. The appellants resisted the petition mainly on the ground that the respondents were fully aware of the final decree dated 6.10.1982 on 7.7.1983 itself as they were informed of the passing of the final decree by the appellants’ then counsel Mr. Thirumaran by his registered notice dated 6.7.1983. The respondents also acknowledged the receipt of the said notice on 7.7.1983. In addition to the above fact, the respondents filed the copy application for getting certified copy of the final decree only on 6.8.1992, though, according to them, they had knowledge of the passing of the final decree on 12.2.1992. It is therefore contended on behalf of the appellants that the respondents have not given proper explanation for the inordinate delay in filing the appeal.
7. The learned single Judge condoned the delay of 3,670 days by observing as follows:
Learned Counsel for the respondents produced a xerox copy of the notice dated 6.7.1983 and also xerox copies of the postal acknowledgments addressed to the petitioners herein. Learned Counsel for the petitioners do not admit about the receipt of the notice dated 6.7.1983 and also the postal acknowledgment said to have been signed by the petitioners herein. It is the contention of the learned Counsel for the petitioners that the learned Commissioner has not divided the property equally and that the method of division causes much prejudice to the petitioners herein. The petitioners have stated elaborately about the various circumstances which prevented them from knowing the final decree proceedings and also from initiating action on the same. The petitioners have given various dates during which they were kept in darkness and they could not have had the knowledge of the pendency of the final decree proceedings. After all, the parties are closely related and the first petitioner is a young widow aged about 37 years. It is stated by the petitioners in their affidavit that there was an attempt for settling the dispute amicably between the parties and that it could not be effectively done during the lifetime of the father of the first respondent. Since the petitioners want to challenge the final decree since according to them, the partition has not been effected equally by the learned Advocate Commissioner, I am of the opinion that an opportunity should be given to them, so that the appeal may be numbered and parties are heard. Any disparity in the division could be set at right by allowing the parties to settle the dispute instead of fighting it outside. In the circumstances, I find the delay is bona fide and accordingly, the delay is condoned on condition that a sum of Rs. 500 is paid to the counsel for the respondents by way of costs within four weeks from to-day. The petition is allowed.
8. Aggrieved against the order of the learned single Judge, the plaintiffs have filed the above Letters Patent Appeal.
9. By consent of parties, Appeal No. 127 of 1994 was also posted along with the Letters Patent Appeal.
10. The question posed for our consideration in this Letters Patent Appeal is, as to whether the respondents have given proper explanation and shown sufficient cause for condoning the inordinate delay of 3,670 days in filing the appeal (Appeal No. 127 of 1994) and whether the order of the learned single Judge in condoning the delay is sustainable in the absence of any specific finding as to whether the respondents have given sufficient cause for the delay in filing the appeal (Appeal No. 127 of 1994)?
11. At the time of hearing, it was brought to our notice of the filing of C.M.P. No. 6549 of 1995 which was filed by the appellants to receive the copy of the notice dated 6.7.1983 sent by the appellants’ counsel to the respondents and the two original postal acknowledgments dated 7.7.1983 signed by the respondents, as additional evidence in L.P.A. No.69 of 1994. According to the appellants, the counsel for the appellants produced a copy of the notice with the original postal acknowledgments before the learned single Judge in order to substantiate their contention that the respondents had received the notice on 7.7.1983. The appellants would submit that when the learned Judge reserved the judgment on 16.12.1993, the appellants’ counsel produced the xerox copies of the notice dated 6.7.1983 and the original postal acknowledgments. However, the learned Judge in his order has observed that the appellants’ counsel produced only the xerox copy of the acknowledgments. The learned single Judge has also observed in his order that the learned Counsel for the respondents herein/petitioners before him do not admit about the receipt of the notice dated 6.7.1983 by the respondents and also the postal acknowledgments dated 7.7.1983 said to have been signed by the respondents. The said observation of the learned Judge compelled the appellants to file C.M.P. No. 6549 of 1985 to receive the copy of the notice dated 6.7.1983 whereby their counsel Mr. Thirumaran specifically informed the respondents about the passing of the final decree in I.A. No. 19362 of 1980 in O.S. No. 2433 of 1969, and the two postal acknowledgments dated 7.8.1983 signed by the respondents herein, as additional evidence. No counter has been filed by the respondents though it was served on the respondents’ counsel on 19.4.1995.
12. We are of the view that the above application has to be ordered as prayed for. Along with that application, the appellants have filed a true xerox copy of the notice dated 6.7,1983 sent by the appellants’ counsel to the respondents and also the original postal acknowledgments dated 7.7.1983 signed by the respondents herein. Since the respondents have denied the receipt of the notice dated 6.7.1983 and also their signatures in the postal acknowledgments, the appellants were compelled to file the above documents in order to substantiate their claim that the respondents have knowledge about the passing of the final decree even as early as 7.7.1983 when they received the notice dated 6.7.1983 sent by the appellants’ counsel to the respondents. In the interest of justice, C.M.P. No. 6549 of 1995 is allowed and the documents filed therein are received as additional evidence in the Letters Patent Appeal.
13. Mr. A.L. Somayaji, learned Senior Counsel appearing for the appellants in the Letters Patent Appeal submitted that the learned Judge has erred in exercising his discretion to excuse the inordinate delay of nearly one decade in filing the appeal and that the filing of the copy of the notice dated 6.7.1983 and the postal acknowledgments in original would sufficiently prove the case of the appellants that the respondents had knowledge about the passing of the final decree as early as 7.7.1983 arid that when they were fully aware of the final decree proceedings, which has passed in the presence of their counsel, the learned single Judge ought to have dismissed the application to condone the delay of 3,670 days in filing the appeal in the absence of any acceptable explanation for the delay. The learned Senior Counsel would further urge that the learned Judge also ought to have dismissed the application when admittedly no explanation was given by the respondents for the delay of six months in filing the copy application to get the certified copy of the final decree, on 6.8.1992, even assuming without admitting, that the respondents had knowledge admitting, that the respondents had knowledge of the final decree only on 12.2.1992. It is also submitted by the learned Senior Counsel that the respondents have not come to court with clean hands and they have suppressed to mention even the admitted facts. Therefore, no indulgence should be shown to such parties who come to court with unclean hands.
14. Arguing contra, Mr. G. Nagarajan, who appeared for the respondents earlier, supported the order of the learned single Judge and contended that when the learned Judge has exercised his discretion, it is not open to this Court to interfere with the same. It is contended by him that the parties approached the court later because one of the respondents being a young widow. Therefore, sympathy should be shown to her since the delay, according to him, is bona fide. He would also urge that since the parties were trying to compromise the matter and amicably settle the dispute, the delay has occurred.
15. The matter was heard by us on a number of occasions, and settlement of the dispute between the parties, who are near relations, was suggested. We gave sufficient time to the parties to amicably settle the matter by arriving at a solution to the dispute. Since the parties did not reach any settlement in spite of several adjournments, we posted the case for continuance of the hearing. On 18.11.1996, the respondents engaged a different counsel, who also reiterated the same arguments as that of the previous counsel. Mr.R. Thiagarajan, learned Counsel for the respondents also cited the decisions reported in Collector, Land Acquisition, Anantang v. Katiji , Asha Devi v. Dukhi Sao , Rafiq v. Munshilal and T. Balasundaram v. R. Palaniswami 1996 T.L.N.J. 49.
16. Before dealing with the judgments cited by the learned Counsel for the respondents, we would like to refer to some of the letters, report of the Advocate Commissioner and the order passed by the trial court in order to show that the respondents had knowledge about the passing of the final decree dated 6.10.1982.
17. In the final decree proceedings, one Mr. T. Thirumaran, advocate, was appearing for the appellants and one Mr. A.V. Raghavan, advocate for the respondents. A letter dated 3.3.1981 was written to the respondents by the appellants’ counsel Mr. T. Thirumaran informing the respondents about the appointment of an Advocate Commissioner to divide the suit properties in accordance with the preliminary decree and requesting them to appear before the court on 23.3.1981 without fail. A copy of the said letter was served on the counsel on record for the respondents Mr. A.V. Raghavan, who made the endorsement of receipt of a copy of the said letter. The original letter was sent to the respondents by registered post with acknowledgment due and the same was served on both the respondents on 6.3.1981. The Advocate Commissioner, who was appointed by the trial court to divide the property, inspected the suit property on 28.3.1982 at 11.00 a.m., and both parties and their counsel were present at the time of inspection. He has divided the property into two portions as ‘A’ and ‘B’ as shown in the sketch annexed to his report. As the parties had already agreed to take the A and B portions, The A portion was allotted to the respondents and the B portion to the appellants. It is pertinent to notice that no objection was filed to the report of the Commissioner by the respondents. The learned City Civil Court Judge by his order dated 6.10.1982 accepted the report of the Advocate Commissioner in regard to the division of the property as mentioned above.
18. The decretal order in I.A. No. 19362 of 1980 in O.S. No. 2433 of 1969, dated 6.10.1982 also discloses that the respondents were represented by their counsel Mr. A.V. Raghavan in the final decree proceedings. On 6.7.1983, the counsel for the appellants sent a letter to the respondents under instructions from the appellants wherein he has also referred to the final decree passed by the City Civil Court in I.A. No. 19362 of 1980 in O.S. No. 2433 of 1969 on 6.10.1982, allotting the front portion ‘A’ to the respondents and the back portion ‘B’ to the appellants. By that notice, the respondents were called upon to pay the amounts mentioned in the final decree. This notice was served on the respondents on 7.7.1983.
19. On 23.1.1992, the counsel for the respondents issued a notice to the appellants calling upon them to make an effective partition of the property and for division of the same by metes and bounds. That notice proceeds on the basis that as if no final decree has been passed. A reply was sent on 12.2.1992 by the 1st appellant to the respondents’ counsel informing him about the passing of the final decree on 6.10.1982. This was denied by the respondents in their letter dated 9.3.1992 sent through their counsel, wherein they reiterated that they are not aware of the passing of the final decree on 6.10.1982, which is ex facie false on the basis of the additional documents filed in C.M.P. No. 6549 of 1995. The same statement was repeated again in their letter dated 25.4.1992 sent through their counsel. It is also stated therein that they are willing to settle the issues with the appellants.
20. A detailed reply was sent by the 1st appellant on 21.6.1992. Thereupon, the respondents filed C.M.P. No. 15486 of 1993 in this Court to condone the delay of 3,670 days in filing the first appeal against the final decree dated 6.10.1982. It is useful to refer to the averments made in paragraph 10 of the affidavit filed in support of the application, which reads as follows:
It is submitted that the aforesaid final decree passed on 6.10.1982 is liable to be set aside, since the same has been passed without the knowledge of the petitioners besides the terms of the aforesaid final decree is neither practically could be implemented nor is beneficial to both the parties.
The above statement has been made by the respondents though it is known to them to be false. As already seen, the final decree was passed on the basis of the report of the Advocate Commissioner, for which no objection was filed by the respondents. This apart, the parties have agreed before the Advocate Commissioner to take A and B portions. The respondents were also represented in the City Civil Court through their lawyer Mr. A.V. Raghavan, whose name is mentioned in the final decree dated 6.10.1982. The above incorrect statement would clearly goes to show that the respondents can go to any extent to suppress the truth. Therefore, they are not entitled to any indulgence from this Court.
21. A detailed counter-affidavit was filed by the appellants denying the allegations made in the affidavit and also mentioning the correct and true statement of facts. It is also stated in the counter-affidavit that the inordinate delay of ten years has not been properly explained by placing any acceptable materials. However, the learned Judge has condoned the delay of 3,670 days by showing sympathy on the respondents who have suppressed the material facts from the purview of court. The learned Judge, in our opinion, has failed to note that several material particulars were not furnished by the respondents in (heir affidavit with regard to the several dates and the allegations in the affidavit are also very vague. The learned Judge has not even mentioned in his order that sufficient cause was shown by the respondents to condone the inordinate delay of 3,670 days in filing the appeal. The learned Judge has erred in exercising his power under Section 5 of the Limitation Act while allowing the petition filed by the respondents.
22. In our view, the learned Judge is also not correct in eschewing the xerox copy of the notice dated 6.7.1983 and also the xerox copies of the postal acknowledgments addressed to the respondents. The learned Judge has eschewed those documents by simply mentioning that the respondents do not admit the receipt of the notice dated 6.7.1983 and also the postal acknowledgments signed by them. This reasoning of the learned Judge is not correct. According to the appellants, they produced the copy of the notice dated 6.7.1983 and also the original postal acknowledgments signed by the respondents before the learned Judge, who perused the same and returned them to the appellants after replacing them by xerox copies. Since the finding was rendered contrary to the real state of affairs, the appellants have now filed C.M.P. No. 6549 of 1995 to receive additional documents. Along with the said petition, they also filed a copy of the notice dated 6.7.1983 and the two original postal acknowledgments signed by the respondents to substantiate their case that the respondents are aware of the final decree proceedings.
23. The other reasoning given by the learned Judge that the Advocate Commissioner has not divided the property equally and that the mode of division has caused much prejudice to the respondents herein is not sound and against the real state of affairs. The Advocate Commissioner has clearly stated in his report that both parties have agreed to divide and share the ‘A’ and ‘B’ Schedule properties equally and therefore the ‘A’ and ‘B’ portions were allotted to the respective parties. It is to be noticed that the respondents have not filed any objection to the Commissioner’s report. The respondents, in our opinion have slept over the matter for more than ten years and therefore, they are not entitled to any further opportunity, more so, when the final decree has been passed on the basis of the Commissioner’s report to which no objection was filed by the respondents and the properties were divided by consent of parties.
24. The decision relied on by the learned Counsel for the respondents and reported in Collector, Land Acquisition, Anantang v. Katiji will be of no assistance to the respondents. The said decision relates to the condonation of delay in regard to the application filed by the State Government, which was not condoned by the court. The Supreme Court, on appeal by the State, held that the dismissal of the appeal filed by the State Government against the decision substantially enhancing the compensation for the land acquired and which also raised important questions as regards principles of valuation as time barred being four days beyond time, was not proper. The Supreme Court has also observed that in matters like condonation of delay, treatment should be similar to the State like any other litigant ought to be accorded. This decision is not relevant for the case on hand. We are not dealing with a State in this case but only dealing with private parties.
25. The next decision cited by the learned Counsel for the respondents is reported in Asha Devi v. Dukhi Sao , which deals with the power of a Division Bench hearing is Letters Patent Appeal under Clause 10 from the judgment of a single Judge in first appeal is not limited only to a question of law under Section 100 of the Code of Civil Procedure but it has the same power which the single Judge has as a first Appellate Court in respect of both questions of fact and of law, and that the limitations on the power of the court imposed by Sees. 100 and 101 of the Code of Civil Procedure cannot be made applicable to an appellate court hearing a Letters Patent Appeal for the simple reason that the single Judge of the High Court is not a Court subordinate to the High Court. This judgment is also not relevant for the case on hand. In this case, we are only dealing with the letters Patent Appeal filed against the order of the learned Single Judge condoning the delay of 3,670 days in filing the appeal. As we are not hearing the first appeal, this judgment will not be of any assistance to the respondents.
26. The decision reported in Rafiq v. Munshilal was sought to be relied on by the learned Counsel for the respondents for the proposition that the parties should not suffer for the lapses on the part of their counsel. This question does not arise in this case. In the instant case, the respondents were represented by their counsel Mr. A.V. Raghavan, who appeared in the final decree proceedings. Therefore, this decision also will not come to the aid of the respondents.
27. Learned Counsel for the respondents then cited the decision reported in T. Balasundaram v. R. Palaniswami 1996 T.L.N.J. 49 for the proposition that in matters like condonation of delay, Courts should take a liberal approach. In our opinion, the discretion under Section 5 of the Limitation Act has to be exercised judicially and not arbitrary. The reason assigned by the learned single Judge in our view that since one of the respondents is a young widow, she could not effectively take steps in time, is hardly a sufficient ground for condoning the inordinate delay and granting the discretionary relief. We are of the view that none of the rulings referred to by the learned Counsel for the rulings referred to by the learned Counsel for the respondents will govern the present situation. On the facts of this case, we have no doubt whatever that the delay of 3,670 days has not been property explained the respondents and the learned single Judge is not right in condoning the same. In the instant case, the learned single Judge has not given any acceptable reasons for taking a liberal approach in the matter of condonation of the delay of 3,670 days In our opinion, this is not a fit case for adopting a liberal approach. In the circumstances of the case, we have no hesitation to hold that the order of the learned single Judge cannot at all be sustained.
28. For the fore-going reasons, L.P.A. No. 69 of 1994 succeeds and the order of the learned single Judge in C.M.P. No. 15486 of 1993 in A.S.S.R. No. 97114 of 1992 (Appeal No. 127 of 1994) is set aside and C.M.P. No. 15486 of 1993 is dismissed. In view of the dismissal of C.M.P. No. 15486 of 1993, Appeal No. 127 of 1994 shall stand dismissed. C.M.P. No. 6549 of 1995 in L.P.A. No. 69 of 1994 is ordered as indicated above. However, there will be no order as to costs.