Petition to condone 2105-day delay in filing a second appeal against dismissal of a first appeal in a partition suit. The judge found the petitioners had participated through counsel in final decree proceedings and knew of the appeal's dismissal, making the stated reasons false; the delay-condonation petition was dismissed.
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C.M.P. No. 16018 of 2023
in
C.M.P. No. 16018 of 2023 in S.A.SR.No.30749 of 2023
S.A.SR.No.30749 of 2023
T.V. THAMILSELVI, J.
This Civil Miscellaneous Petition has been filed seeking to condone
the delay of 2105 days in filing the above Second Appeal against the judgment and decree dated 27.02.2017 passed in A.S.No.92 of 2013, on the file of Subordinate Judge, Poonamallee confirming the judgment and decree passed in O.S.No.33 of 1995 dated 12.03.2012 on the file of Principal District Munsif, Poonamallee.
the proceedings, the 1st defendant Jayaraman died and other defendants have contested the suit. On considering the facts and evidence on record,
C.M.P. No. 16018 of 2023 in S.A.SR.No.30749 of 2023
the trial court held that the properties are joint family properties and the plea of ouster and adverse possession as claimed by the 2nd defendant was not accepted. Accordingly, the suit was decreed by granting half share to the plaintiffs. Against which, the appeal in A.S.No. 92 of 2013 was filed by this petitioners/defendants 2, 5 to 8 and the first appellate judge independently analysed the facts and evidence on record and finally concludes that the suit properties are ancestral properties and the same was also denied by D.W.1 in her cross-examination. Moreover, the oral partition as well as adverse possession and other family arrangement was not proved by the defendants. Accordingly, the first appellate judge confirmed the findings of trial judge and dismissed the appeal on 27.02.2017. Thereafter, challenging the said findings, the petitioners preferred the Second Appeal on 19.07.2023 in S.A.SR.No. 30749 of 2023 along with this petition to condone the delay of 2105 days in filing the appeal with a reason stating that they were under the bonafide impression, the second appeal was filed by the trial court counsel. Furthermore, though the certified copy of judgment and decree passed in the first appeal was made ready on 12.06.2017, the trial court counsel has not handed over the same to him. Hence, there is a delay of 2105 days arose and he filed the present petition
C.M.P. No. 16018 of 2023 in S.A.SR.No.30749 of 2023
to condone the delay. Further, they would also contend that during the final decree proceedings, only when the advocate commissioner visited the property, they came to know that the Second Appeal has not been filed. So, immediately, they have taken steps and filed this second appeal, however, there is a delay of 2105 days in filing the Second Appeal. Hence, they have filed a petition to condone the delay.
C.M.P. No. 16018 of 2023 in S.A.SR.No.30749 of 2023
on the Commissioner report and allotted half share to the plaintiffs/respondents 1 to 7 herein on 13.06.2022 and in that proceedings, the petitioners/defendants have also represented through their counsel. After passing of final decree, this Second Appeal was filed. The learned counsel would also submit that they have already aware of proceedings and knowledge about the dismissal of appeal, but they came forward by filing this petition to condone the delay of 2105 days with flimsy reasons. So, the reasons stated by them is false one. Hence, he prayed to dismiss this petition.
C.M.P. No. 16018 of 2023 in S.A.SR.No.30749 of 2023
report. Based on that, final decree was also passed by the trial court on 13.06.2022.
C.M.P. No. 16018 of 2023 in S.A.SR.No.30749 of 2023
already initiated by the respondents to get a final decree. All the court proceedings were known to them and the same was proved through the final decree proceedings by the respondents/plaintiffs. Therefore, the reasons assigned by them is false one and not acceptable one. Accordingly, this petition is dismissed.
20.09.2024
rpp
C.M.P. No. 16018 of 2023 in S.A.SR.No.30749 of 2023
T.V.THAMILSELVI, J.
rpp
C.M.P.No. 16018 of 2023 in S.A.SR.. No. 30749 of 2023
20.09.2024
1 issue framed by the court
Should the delay of 2105 days in filing the second appeal be condoned, given the petitioners' claim that their trial court counsel failed to inform them of the appeal dismissal?
T.V. Thamilselvi
T.V. Thamilselvi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
