IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13-08-2010 CORAM THE HON'BLE MR. JUSTICE M.JAICHANDREN C.M.P. No.452 of 2010 in S.A. No.414 of 1987 ORDER
This petition has been filed praying that this Court may be pleased to condone the delay 4509 days in filing the application to set aside the order, dated 14.8.1997, made in the second appeal, in S.A.No.414 of 1987.
2. The petitioner has stated that he was the first respondent in the second appeal filed before this Court, in S.A.No.414 of 1987. The petitioner has further stated that the respondents 1 to 6 in the present petition had filed a suit, in O.S.No.213 of 1981, before the Principal Subordinate Court, Cuddalore, praying for a decree to declare their title in respect of the suit property and for injunction restraining the respondents therein from interfering with the possession and enjoyment of the suit property by the plaintiffs in the said suit, and to restrain the petitioner herein from executing the decree obtained in the R.C.O.P proceedings concerned. The said suit had been decreed. Therefore, the petitioner had preferred an appeal, in A.S.No.193 of 1985, on the file of the Principal District Court, Cuddalore, South Arcot District. The said appeal had been allowed.
3. Challenging the judgment and decree, made in A.S.No.193 of 1985, the respondents 1 to 6 in the present petition had preferred a second appeal before the High Court of Judicature at Madras. While so, the appellants in the said second appeal had approached the petitioner, through one Sankara Chettiar, requesting the petitioner to settle the matter, amicably.
4. The petitioner has also stated that he had been taken to Chennai and put up at Hotel Sudha, on Poonamallee High Road, on the pretext that his counsel K.Venugopal would be coming to Chennai and that he would try to settle the matter, in his presence. It had also been stated that, on 13th of August, 1997, the petitioner was forcibly given some intoxicating drink, due to which he was totally disoriented. Since, he was not a habitual drinker he was in a disoriented state and not in his usual senses. He was taken to the High Court buildings on the following day and he was forced to sign some papers. He was a semi-literate person and he was not aware of what he was asked to sign. However, Sankara Chettiar, the representative of the appellants in the second appeal, had assured the petitioner that everything would be fine and that the petitioner could trust them and that the papers could be signed.
5. It had been further stated that the petitioner had returned to Cuddalore and had informed his local counsel that the appellants had made him to sign some papers. Immediately thereafter, the said counsel had verified from the High Court and had found that the second appeal had been allowed, on 14.8.1997, on a memo said to have been filed by the petitioner, conceding the title of the appellants. The petitioner and his counsel had been highly shocked to know that such a thing had happened, without his full knowledge, as the property is worth more than Rs.5 crores.
6. The petitioner has also stated that he had been defrauded by the appellants in the second appeal, by obtaining his signatures in certain papers, without informing him about the contents therein. As the petitioner had signed the papers without knowing its contents, he did not know the ramifications of his act at the time of the signing of the papers. If he had known about the ramifications of his act he would have refused to sign the papers. He had also stated that no prudent man would relinquish his rights in such a causal manner. He had also stated that when he had tried to contact his counsel at Chennai, he was informed that the said counsel had shifted his practice to Delhi.
7. In such circumstances, his local counsel, K.Venugopal, had asked the petitioner to contact Hema Sampath, Advocate, who is the sister-in-law of K.Venugopal. He had also stated that Hema Sampath had prepared an application to set aside the order, dated 14.8.1997, made in the second appeal, in S.A.No.414 of 1987, and had filed the said application on behalf of the petitioners Advocate, Prabhakar. While the petitioner was awaiting an order from the High Court, Sankara Chettiar had been helping him in the matter since the petitioner was unwell and he was not worldly wise. He was totally depending on Sankara Chettiar, who had informed the petitioner that the petition to set aside the order, dated 14.8.1997, would be taken up and argued by the counsel concerned.
8. Thereafter, from the month of January, 2009, the petitioner had been approaching Hema Sampath, Advocate, who had asked him to contact the concerned Clerk, Balu, who had filed the application. In the month of August, 2009, Hema Sampath had told the petitioner that she was not able to trace out the bundle due to the long delay in approaching her. Thereafter, the petitioner had approached the Clerk, dealing with the matter, to know the position in the case. However, he had been informed by the said Clerk that he had left his former office and that he was not incharge of the case of the petitioner any more.
9. In such circumstances, the petitioner had filed an application before the Registrar General, High Court of Judicature at Madras, on 22.9.2009, requesting for a copy of the civil miscellaneous petition filed in the second appeal, in S.A.No.414 of 1987 and the orders passed therein, if any, under the Right to Information Act, 1995. The Public Information Officer, High Court of Madras, had sent a reply, dated 22.10.2009, informing the petitioner that if he was a party to the second appeal he could obtain the necessary information through his counsel on record.
10. Thereafter, on the advice of the petitioners counsel he had filed a search memo to peruse the bundle relating to the second appeal, in S.A.No.414 of 1987. On 8.12.2009, the petitioners counsel had filed a search memo, along with his vakalat. However, the counsel for the petitioner was informed that the bundle relating to the second appeal could not be traced. Hence, the counsel had submitted a letter to the Registrar Judicial, High Court of Madras, on 5.1.2010, requesting him to direct the concerned officer to trace the bundle, to enable the counsel to peruse the same. However, on 12.1.2010, the petitioners counsel had requested the concerned Section Officer to produce the bundle for perusing the same.
11. On a perusal of the bundle, most of the original papers, including the grounds of appeal, judgment and decree of the courts below, the compromise memo, said to have been filed in the second appeal, and the original order, dated 14.8.1997, were missing. Hence, the counsel for the petitioner had given another letter to the Registrar Judicial, on 18.1.2010, requesting him to direct the concerned officer to trace the entire bundle, to enable the counsel to peruse the same.
12. The application filed by the petitioner to set aside the order, dated 14.8.1997, made in the second appeal, in S.A.No.414 of 1987, was not available in the bundle. Thus, it is clear that the appellants had played fraud on the petitioner, as well as on this Court. It has been further stated that, unless the order, dated 14.8.1997, made in the second appeal, in S.A.No.414 of 1987, is set aside, the petitioner would be put to irreparable loss and hardship. In such circumstances, the petitioner had filed the present application, afresh, to set aside the order, dated 14.8.1997.
13. It has also been stated that if the earlier application filed by the petitioner, to set aside the order, dated 14.8.1997, made in the second appeal, in S.A.No.414 of 1987, is traced out by the Registry, the petitioner would have no necessity to file the present application. In such circumstances, there would be no delay in the filing of the present application. However, due to abundant caution and in order to avoid technical objections the petitioner has filed the present application to condone the delay of 4509 days in filing the petition to set aside the order, dated 14.8.1997, made in S.A.No.414 of 1987.
14. It has also been stated that the delay is neither willful, nor wanton, but due to the reasons stated above, and if the delay is not condoned the petitioner would be put to irreparable loss and hardship. It has also been stated that, if the earlier petition filed by the petitioner, on 3.9.1997, is traced out there would not be any delay in filing the present petition. However, due to abundant caution this petition has been filed in order to avoid technical objections being raised on behalf of the respondents.
15. In the counter affidavit filed on behalf of the first respondent association it has been stated that the present petition filed by the petitioner to condone the delay of 4509 days in filing the petition to set aside the order, dated 14.8.1997, made in the second appeal, in S.A.No.414 of 1987, is not maintainable in law. The petition, filed after a long delay, without adducing proper reasons, is devoid of merits and therefore, it is liable to be dismissed, in limine. It has also been stated that the lis amongst the parties had culminated in a compromise entered into by the said parties, on 14.8.1997. The compromise memo had been duly signed and authenticated before the Commissioner of Oaths. Under the said compromise memo the petitioner had accepted the title of the appellants in the second appeal, in S.A.No.414 of 1987.
16. Paragraph 2 of the judgment passed by this Court, on 14.8.1997, in the second appeal, in S.A.No.414 of 1987, reads as follows:
Judgment
The counsel for the appellants has filed a memo, stating that appellants 1 and 4 died during the pendency of the appeal. The other appellants are sufficient to represent the appellants association and hence, no legal representatives need be added. Since the appellants are the Association, represented by the members, on the death of one or two members, the question of impleading the legal representatives does not arise. Hence, the memo is recorded.
2. The I st respondent herein has filed a memo stating that he concedes the title of the appellants and consequently, the appeal may be allowed. The parties will bear their respective costs. The Ist respondent is present in Court and his consent has been obtained with regard to the filing of the memo. Pursuant to the memo, the appeal is allowed without any costs. In view of the disposal of the main second appeal, no further orders are necessary in C.M.P.No.4567 of 1987.
17. In such circumstances, the allegations made by the petitioner, in the present civil miscellaneous petition, are strange, mischievous and would amount to contempt of Court. The petitioner is attempting to mislead the Court, with mala fide intentions. He has not come before this Court with clean hands. It is not open to the petitioner to claim that he is not aware of the compromise memo filed before this Court. In such circumstances, the present civil miscellaneous petition, filed by the petitioner, would amount to contempt of Court and the petitioner would be liable for committing acts of perjury. The civil miscellaneous petition filed by the petitioner, after nearly 13 years, that too with a delay of 4509 days in filing the petition to set aside the order, dated 14.8.1997, made in S.A.No.414 of 1987, is liable to be dismissed, in limine.
18. In the reply filed on behalf of the petitioner it has been stated that the allegations made in the counter affidavit filed on behalf of the first respondent are false and frivolous. It has been stated that the petitioner had been defrauded by the respondents. He had been made to sign certain papers under the influence of intoxicating drinks, without knowing or understanding the contents of the alleged compromise memo and the receipts, as well as the other documents.
19. It had also been stated that the petitioner had not instructed his counsel, K.Venugopal, to issue the reply notice, dated 25.4.2003, disowning his property. Only from the counter affidavit filed on behalf of the first respondent, the petitioner had come to know about the same. Immediately, thereafter, he had cancelled the vakalat given to his advocate, K.Venugopal, in O.P.No.42 of 2004, on the file of the District Court, Cuddalore, which had been, originally, numbered as O.P.No.68 of 2003, on the file of the Subordinate Court, Cuddalore,
20. It had also been stated that, Sivakumar, the sisters husband of Sankara Chettiar and his son Saravanan had committed fraud to grab the property from the petitioner. Sankara Chettiar and his son Saravanan had colluded with the first respondent and had remained ex parte, in O.P.No.42 of 2004 and had also arranged, in a fraudulent manner, for the issuance of the notice, dated 25.4.2003.
21. It had also been stated that the petition to set aside the order passed, in S.A.No.414 of 1987, had been filed within one week from the passing of the order, dated 14.8.1997. However, since the petitioner was unaware of the court proceedings and as he was an illiterate person, a collusive order had been obtained from this Court, without the petitioner having proper knowledge of the same. It had also been stated that the order passed by this Court, on 14.8.1997, in S.A.No.414 of 1987, is against the provisions of Order XXIII of Rule 3-B of the Civil Procedure Code, 1908. As such, it is liable to be set aside.
22. Mr.A.L.Somayaji, the learned Senior Counsel appearing on behalf the petitioner had submitted that the judgment of this Court, dated 14.8.1997, made in the second appeal, in S.A.No.414 of 1987, had been obtained by fraud committed by the respondents, who were the appellants in the said second appeal. He had submitted that the petitioners signature had been obtained in the alleged compromise memo, dated 14.8.1997, fraudulently, when the petitioner was in an intoxicated state of mind. The signatures had been obtained by the appellants in collusion, with one Sankara Chettiar, who was acting as a mediator in the dispute between the petitioner and the respondents. When the petitioner had come to know of the judgment passed by this Court, on 14.8.1997, in S.A.No.414 of 1987, he had contacted his counsel, immediately, thereafter, to take steps to set aside the said judgment, as it had been obtained in a fraudulent manner.
23. A petition had been filed, on 3.9.1997, to set aside the judgment, dated 14.8.1997, made in S.A.No.414 of 1987. However, in spite of several requests having been made by the petitioner, the Registry of this Court had not been in a position to trace the original records relating to the second appeal, including the petition filed by the petitioner, on 3.9.1997. As such, there is no delay on the part of the petitioner in the filing the petition to set aside the judgment passed by this Court, on 4.8.1997, in S.A.No.414 of 1987. However, due to abundant caution, the petitioner has filed the present petition, under Section 5 of the Limitation Act, 1963, to condone the delay of 4509 days in filing the petition to set aside the judgment passed by this Court, on 14.8.1997.
24. It had also been stated that, even on the merits of the case, the petitioner has sufficient grounds to set aside the judgment passed by this Court, on 14.8.1997, in S.A.No.414 of 1987. It had been stated that the provisions of Order XXIII, Rule 3-B of the Civil Procedure Code, 1908, had not been followed. The statements regarding the payments said to have been made to the petitioner, in the alleged memo of compromise, dated 14.8.1997, are incorrect and false. The petitioner had never agreed to give up his claim relating to the title in respect of the property in question, as stated in the alleged memo of compromise.
25. Even the stamp paper on which the alleged compromise has been recorded had been purchased, on 14.8.1997, at Cuddalore. There is no proper reason stated as to why a sum of Rs.5 lakhs had been paid to Sankara Chettiar, who is not a party to the suit. Further, no power had been shown based on which the first respondent Association had been authorized to pay a sum of Rs.15 lakhs to the petitioner. Since, the original records have not been made available by the Registry of the High Court, in spite of the direction issued by this Court, on 23.4.2010, the petitioner is not in a position to show that he had filed the petition to set aside the judgment of this Court, dated 14.8.1997, within the time limit prescribed by law.
26. It has also been stated that the petitioner would be put to irreparable loss and mental agony if the judgment of this Court, dated 14.8.1997, made in S.A.No.414 of 1987, is not set aside, after condoning the delay of 4509 days in filing the petition to set aside the said judgment. In such circumstances, this Court may be pleased to allow the petition, by condoning the delay in filing the petition, as prayed for by the petitioner.
27. The learned Senior Counsel had relied on the following decisions in support of his contentions:
27.1. In Balakrishnan.N. V. M.Krishnamurthy (1998(II) CTC 533), the Supreme Court had held as follows:
10. It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 o the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. 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 such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammelled by the conclusion of the lower Court.
11. The reason for such a different stance is thus: The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause.
12. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newers causes would sprout up necessitating newer person to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy and consequential anarchy. Law of limitation is thus found on public policy. It is enshrined in the maxis interest reipublicae up sit finis litium Rules of limitation are not mean to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time
27.2. In State of Karnataka V. Y.Moideen Kunhi (Dead) By Lrs and others (2009 INDLAW SC 576), the Supreme Court in a case filed by the State for condoning the delay of 6500 days had condoned the said delay by imposing costs, keeping in view the importance of questions of law which were involved in the said case.
27.3. In I Arun Alexander Lakshmanan V. A.P.Vedavalli (2007(4) CTC 449), a Division Bench of this Court had held that in cases of condonation of delay the true test to be applied is whether the applicant has acted with due diligence and that the discretion has to be exercised with vigilance and circumspection. In the said decision, the Division Bench had imposed exemplary cost of Rs.50,000/-, while condoning the delay in filing the application for setting aside the ex parte decree.
27.4. In Palanisami and three others Vs. Executive Officer, Oddanchatram and three others (1995(II) CTC 438), this Court had set aside the order of the Court below and directed the learned District Munsif therein to order publication of the compromise in the village, as required under Order 1 Rule 8 Sub-Rule (4) and also under Order 23 Rule 3B of the Civil Procedure Code 1908, since no publication has been effected, with regard to the terms of the compromise entered into between the parties in the suit filed by the plaintiffs in a representative capacity.
27.5. In C.Selvaraj V. M.Subramani (2001(4) CTC 727), this Court, by applying the ratio laid down in Balakrishnan V. Krishnamurthy (1999(1) L.w. 79), had taken a lenient view to ensure that petitioners defence was not shut out and the delay was condoned, subject to payment of cost.
27.6. In Pavayammal V. S.N.Chockalingam (2009(5) CTC 414), it had been held as follows:
The word `sufficient case under Section 5 of the Limitation Act will have to be interpreted in a purposeful and meaning way. As a matter of fact, the Court of law is not supposed to adopt a pedantic approach instead it has to take a liberal view while dealing with the application of condonation of delay. Ordinarily a party does not stand to gain by lodging in Appeal belatedly. Refusing to condone a delay will result in meritorious matter being thrown out at the nascent stage and thereby the cause of justice being defeated. On the other hand, if a party is allowed to enter into the scene of main proceedings, then the matter can be decided on merits. Of course a Court of law providing due opportunities to the parties to prove their case. The judiciary is respected not on account of its power to legalise injustice on technical grounds but it is capable of removing injustice and is expected to do so. This Court is of the considered view that substantial justice will have to be delivered to the parties overriding technicalities.
28. Mr.V.Raghavachari, the learned counsel appearing on behalf of the first respondent had submitted that the present petition, filed by the petitioner, is frivolous in nature. After having signed the compromise memo, on 14.8.1997, voluntarily, based on which this Court had passed the judgment, dated 14.8.1997, in S.A.No.414 of 1987, it is not open to the petitioner, that too after a lapse of nearly 13 years, to file the present petition, seeking to set aside the judgment of this Court, dated 14.8.1997. No proper reasons had been stated by the petitioner to set aside the judgment of this Court, based on the compromise memo, dated 14.8.1997, which had been signed by the petitioner, before K.Thangavelu, Advocate, Commissioner of Oaths.
29. The learned counsel had also stated that the claim of the petitioner that he was not aware of the contents of the compromise memo, dated 14.8.1997, cannot be accepted. As a reply to the notice, dated 16.4.2003, issued to him, regarding the agreement for sale, dated 2.6.1997, it has been stated that the second appeal in S.A.No.414 of 1987, had been compromised. While so, nothing has been stated on behalf of the petitioner as to why there has been a delay of nearly seven years thereafter, in taking steps to set aside the judgment of this Court, dated 14.8.1997.
30. When the petitioner was fully aware of the memo of compromise, dated 14.8.1997, and the contents of the said memo, right from the date of its filing before this Court, based on which the judgment, dated 14.8.1997, had been passed, in S.A.No.414 of1987, the claim of the petitioner that the memo of compromise had been obtained, fraudulently and by collusion, cannot be sustained. The petitioner has been making contradictory statements in his affidavits filed in support of the present petition. When this Court had passed the judgment, based on the memo of compromise, dated 14.8.1997, having noted the presence of the petitioner, it is not open to the petitioner, at this late stage, to contend that the memo of compromise had been obtained by fraud. Further, it is not open to the petitioner to claim that the reply notice had been issued by his Advocate, K.Venugopal, without instructions from him, as it is not in dispute that the petitioner had continued to engage the said counsel, in O.P.No.42 of 2004, on the file of the District Court, Cuddalore, till the year, 2010.
31. It has also been stated that the petitioner has not shown sufficient proof to substantiate his claim that he had filed a petition in the Registry of this Court, on 3.9.1997, to set aside the judgment, dated 14.8.1997, made in S.A.No.414 of 1987. The present civil miscellaneous petition, filed by the petitioner, is an attempt to mislead this Court, by making untenable claims. In fact, by filing the present petition, the petitioner has committed acts of perjury, as well as contempt of Court. His attempt to set aside the judgment of this Court, dated 14.8.1997, made in S.A.No.414 of 1987, after nearly 13 years, from the date of the said judgment, would amount to a gross abuse of the process of this Court. Hence, the present petition, filed by the petitioner, is devoid of merits and it is liable to be dismissed, in limine, with exemplary costs.
32. The learned counsel appearing on behalf of the first respondent had relied on the following decisions in support of his contentions:
32.1. In Pundlik Jalam Patil (D) by Lrs. V. Executive Engineer Jalgaon Medium Project and Another (Manu/SC/4694/2008), it had been held as follows:
Delay cannot be condoned as the averments made in the application do not show any acceptable cause much less sufficient cause to exercise Courts discretion in its favour.
32.2. In Oriental Aroma Chemical Industries Ltd. V. Gujarat Industrial Development Corporation and another (Manu/SC/0141/2010), the Supreme Court had held as follows:
10. A reading of the impugned order makes it clear that the High Court did not make a bald reference to the application for condonation of delay filed by the respondents but allowed the same without adverting to the averments contained therein and the reply filed on behalf of the appellant. Not only this, the High Court erroneously assumed that the delay was of 1067 days, though, as a matter of fact, the appeal was filed after more than four years. Another erroneous assumption made by the High Court was that the appellant had not filed reply to controvert the averments contained in the application for condonation of delay. . Notwithstanding this, we may have set aside the impugned order and remitted the case to the High Court for fresh disposal of the application filed by the respondents under Section 5 of the Limitation Act, but, do not consider it proper to adopt that course, because as will be seen herein after the respondents did not approach the High Court with clean hands.
13. In our view, the above statement contained in para 1 of the application is not only incorrect but is ex facie false and the High Court committed grave error by condoning more than years delay in filing of appeal ignoring the judicially accepted parameters for exercise of discretion under Section 5 of the Limitation Act.
14. In the result, the appeal is allowed. The impugned order of the High Court is set aside and the application for condonation of delay filed by the respondents is dismissed.
33. From the averments made in the affidavits filed on behalf of the civil miscellaneous petition, in C.M.P.No.452 of 2010, and in the counter affidavit filed on behalf of the first respondent, it is clear that a judgment and decree had been passed, on 14.8.1997, in the second appeal, in S.A.No.414 of 1987, based on a compromise memo, dated 14.8.1997. The judgment of this Court, dated 14.8.1997, made in S.A.No.414 of 1987, reads as follows:
Judgment
The counsel for the appellants has filed a memo, stating that appellants 1 and 4 died during the pendency of the appeal. The other appellants are sufficient to represent the appellants association and hence, no legal representatives need be added. Since the appellants are the Association, represented by the members, on the death of one or two members, the question of impleading the legal representatives does not arise. Hence, the memo is recorded.
2. The I st respondent herein has filed a memo stating that he concedes the title of the appellants and consequently, the appeal may be allowed. The parties will bear their respective costs. The Ist respondent is present in Court and his consent has been obtained with regard to the filing of the memo. Pursuant to the memo, the appeal is allowed without any costs. In view of the disposal of the main second appeal, no further orders are necessary in C.M.P.No.4567 of 1987.
34. However, after a period of nearly 13 years from the date of the passing of the said judgment, the petitioner has filed the present civil miscellaneous petition, under section 5 of the Limitation Act, 1963, in C.M.P.No.452 of 2010, praying that this Court may be pleased to condone the delay of 4509 days in filing the said petition, to set aside the judgment, dated 14.8.1997, made in S.A.No.414 of 1987. It has been stated that, in fact, there is no delay in the filing of the petition, as it had been filed, within time, on 3.9.1997, itself. However, as the petition had been misplaced by the High Court Registry, the petitioner has preferred to file the present petition, for condonation of delay, by way of abundant caution.
35. It had also been stated that the judgment of this Court, dated 14.8.1997, made in S.A.No.414 of 1987, is liable to be set aside, as it had been obtained by fraud. It has been stated that the alleged compromise memo, dated 14.8.1997, based on which this Court had passed the judgment, on 14.8.1997, is a fraudulent document, wherein the signature of the petitioner had been obtained by misleading him, when he was under the influence of intoxicating drinks. The appellants in the second appeal, in S.A.No.414 of 1987, had colluded with one Sankara Chettiar, who was acting as a mediator and had, fraudulently, obtained the signatures of the petitioner in some papers, without informing him the proper reasons for obtaining the signatures and without explaining the consequences that may follow, pursuant to the signing of the papers.
36. The petitioner had never intended to part with the title, in respect of the property in question, in favour of the appellants in the second appeal. It had also been stated that the petitioner had taken various steps, promptly, by approaching the concerned clerk, as well as the counsel, to trace the petition filed by the petitioner, on 3.9.1997. He had also made a number of requests to the Registrar Judicial, High Court at Madras, to trace the petition, said to have been filed by the petitioner, on 3.9.1997, as well as the original records relating to the second appeal, in S.A.No.414 of 1987. However, since, the petition filed by the petitioner had not been traced, the petitioner has filed the present petition, under Section 5 of the Limitation Act, 1963, by way of abundant caution, to condone the delay of 4509 days in filing the petition to set aside the judgment of this Court, dated 14.8.1997, made in the second appeal, in S.A.No.414 of 1987.
37. From the records available before this Court, relating to the present civil miscellaneous petition, it is seen that this Court, by a docket order, dated 23.4.2010, had noted that only a part of the back bundle, which does not contain the important documents, like the original judgment sought to be set aside, had been put up along with the civil miscellaneous petition, in C.M.P.No.452 of 2010, based on an earlier direction issued to the Registry. This Court had adjourned the matter to enable the Registry to have sufficient time to search and to find out the missing records. However, in spite of several adjournments the concerned Registry of the High Court had not been in a position to trace the original records relating to the second appeal, in S.A.No.414 of 1987.
38. An office note placed by the Registry before this Court states that the past records relating to the matter are not traceable, based on the particulars furnished by the petitioner, in spite of the best efforts of the Registry. In such circumstances, this Court is not in a position to take into consideration the claim of the petitioner that he had filed a petition, earlier, to set aside the judgment, dated 14.8.1997, made in S.A.No.414 of 1987, on 3.9.1997. As such, it is for this Court to consider as to whether the petitioner has shown sufficient cause and acceptable reasons to condone the delay of 4509 days in filing the petition, in C.M.P.No.452 of 2010, to set aside the judgment, dated 14.8.1997, made in S.A.No.414 of 1987.
39. In view of the averments made by the petitioner, as well as the first respondent, and in view of the submissions made by the learned counsels appearing on their behalf, it is seen that this Court had passed a judgment, on 14.8.1997, in the second appeal, in S.A.No.414 of 1987, based on a compromise memo, dated 14.8.1997. It is also seen that the petitioner has preferred the present civil miscellaneous petition, after a lapse of nearly 13 years from the date of the passing of the said judgment, praying that this Court may be pleased to condone the delay of 4509 days in filing the said petition, seeking to set aside the judgment, dated 14.8.1997, made in S.A.No.414 of 1987.
40. Even though the learned counsel appearing on behalf of the petitioner had raised a number of grounds for the consideration of this Court to set aside the judgment, dated 14.8.1997, made in S.A.No.414 of 1987, the main ground urged on behalf of the petitioner is that the signature of the petitioner in the alleged compromise memo, dated 14.8.1997, had been obtained, collusively and fraudulently, when he was in an intoxicated state of mind, due to the intake of certain alcoholic drinks. From the subsequent conduct of the petitioner and the events that had followed the passing of the judgment by this Court, on 14.8.1997, it cannot be said that the petitioner had no knowledge about the contents of the compromise memo, dated 14.8.1997, and the consequence of the judgment of this Court, dated 14.8.1997, made in S.A.No.414 of 1987.
41. From the records available, it cannot be held that the petitioner had filed a petition, earlier, on 3.9.1997, to set aside the judgment of this Court, dated 14.8.1997, made in S.A.No.414 of 1987. The petitioner has not been in a position to show sufficient proof to sustain his claim that he had filed the earlier petition, within time and that it had been misplaced by the Registry of this Court. Further, sufficient reasons have not been stated as to why the petitioner had not initiated steps to set aside the judgment of this Court, dated 14.8.1997, at an earlier point of time, in spite of his having sufficient knowledge about the judgment, dated 14.8.1997.
42. Even if it is true that the petitioner had filed a petition, on 3.9.1997, before the Registry of this Court, to set aside the judgment, dated 14.8.1997, it has not been explained by the petitioner as to why prompt steps had not been taken to trace the said petition, to be brought before this Court for appropriate orders. A mere allegation made by the petitioner that the judgment, dated 14.8.1997, had been passed by this Court, in S.A.No.414 of 1987, based on an alleged memo of compromise and that the signature of the petitioner found in the said memo of compromise had been affixed by him, in an intoxicated state of mind, cannot be accepted, especially, at this belated stage.
43. Further, from the subsequent communications issued on behalf of the petitioner it can be noted that the petitioner was aware of the judgment, dated 14.8.1997. However, the petitioner had not taken any action to set aside the said judgment, promptly and prudently. Having signed the compromise memo, dated 14.8.1997 and having obtained the judgment, dated 14.8.1997, in S.A.414 of 1987, based on the compromise memo, it would not be open to the petitioner to challenge the said judgment, at this late stage, as an afterthought. The petitioner has not been in a position to show that he had not received the amount said to have been paid to him, at the time of the signing of the compromise memo. It would be improper on the part of the petitioner to contend that he had been mislead into signing the compromise memo when he was under the influence of alcohol.
44. In such circumstances, this Court is of the considered view that the petitioner has not shown sufficient cause or reason to condone the delay of 4509 days in filing the petition to set aside the judgment, dated 14.8.1997, made in S.A.No.414 of 1987. As such, the present civil miscellaneous petition is devoid of merits and therefore, it is liable to be dismissed. Hence, it is dismissed. No costs.
csh