C.M.P(MD)No.12661 of 2024 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on : 21.01.2025 Delivered on : 31.01.2025 CORAM: THE HON'BLE MR.JUSTICE K.MURALI SHANKAR C.M.P(MD)No.12661 of 2024 in A.S(MD)SR No.33277 of 2024 B.Gothai Nachiar : Appellant Vs. 1.S.Renganathan (Mentally ill Patient) through his Guardian and next friend and his wife Kanagalakshmi 2.S.Subramanian (Mentally ill Patient) through his Guardian and next friend and his wife Jeyarani. S.Arulkumar (died on 19.11.2019) 3.S.Suraida Gnanamani : Respondents Prayer : Civil Miscellaneous Petition filed under Order 41 Rule 5 of C.P.C., to condone the delay of 697 days in filing the main appeal suit in AS(MD)SR No.33277 of 2024. For Appellant : Mr.V.Meenakshi Sundaram For Respondents : Mr.T.S.R.Venkatramana, Senior Counsel, for Mr.G.Dhanapal, for R1. : Mr.G.Shrinivas, for R2. : Mr.S.Kumar, for R3. 1/7 https://www.mhc.tn.gov.in/judis C.M.P(MD)No.12661 of 2024 JUDGMENT The Civil Miscellaneous Petition has been filed seeking orders to condone the delay of 697 days in filing the appeal, challenging the judgment and decree made in O.S.No.48 of 2012, dated 29.09.2021 on the file of the Principal District Court, Tiruelveli. 2. The case of the petitioner is that the first respondent filed the suit in O.S.No.48 of 2012, through his wife/guardian for partition and allotment of 1/3 share in the suit properties; that the petitioner along with third defendant filed the written statement taking a stand that their mother Janakiammal executed a registered Will, dated 09.01.1992; that after full trial, the learned trial Judge rejected the Will and granted preliminary decree for partition of 1/3 shares; that the petitioner aggrieved by the judgment and decree preferred the present appeal; that the petitioner's Advocate applied for the certified copies of the judgment and decree on 04.10.2021 and the same was made ready on 09.12.2021 and delivered to his counsel on 10.12.2021; that the petitioner's trial Court Advocate fell ill and informed the factum of decree passed only in the month April 2022; that the petitioner due to his health issues and continuous treatment settled in Chennai; that her husband also was not well and undergone a major heart operation in the later part of 2022 and the petitioner is only person taking care of him; that the petitioner's husband after 2/7 https://www.mhc.tn.gov.in/judis C.M.P(MD)No.12661 of 2024 recovery arranged funds and handed over the papers to the present counsel in the first week of April 2024 and filed the present appeal along with petition to condone the delay; that the delay is neither willful nor wanton; that the petitioner will be put to irreparable loss and immense hardship, if the delay is not condoned and that therefore, the delay in filing the appeal may be condoned. 3.The first respondent has filed a counter statement raising objections, wherein it has been stated that the wife of the first respondent after marriage only came to know about the insanity of her husband and she is still living with him and taking care of him; that the appellant/second defendant a blood sister of the plaintiff is greedy and wanted to swallow the property of her insane brother; that after the lapse of appeal time, the first respondent/plaintiff filed the final decree proceedings in I.A.No.5 of 2024 on 16.04.2024 and the same is pending; that the petitioner cannot blame the lawyer for her deliberate delay; that the petitioner has not filed any document to prove her or her husband's ill health; that the petitioner has already been squatting on the property for so long and now wantonly delaying the case endlessly only to punish his ill health brother and his family; that there is no justifiable reason to condone the delay and that therefore, the petition is liable to be dismissed. 4. It is evident from the records that the first respondent/plaintiff, who is 3/7 https://www.mhc.tn.gov.in/judis C.M.P(MD)No.12661 of 2024 mentally ill person has filed the suit through his next friend/wife claiming partition and allotment of 1/3 share against his brother's sister and subsequent purchaser. It is further evident that the third defendant, who is also mentally ill patient had died subsequently; the second defendant/sister has taken a defence that her mother executed a Will in her favour, but the learned trial Judge, after full trial has rejected the case of the seond defendant Will and granted the preliminary decree as sought for. Aggrieved by the impugned preliminary decree, the second defendant has preferred the present appeal along with application to condone the delay in filing the appeal. 5. As already pointed out, the petitioner has canvassed her ill health and her husband's ill health as the reasons for delay in filing the appeal. No doubt, as already pointed out by the learned counsel for the first respondent, the petitioner has not produced any medical records to substantiate the same. 6. The learned senior counsel appearing for the first respondent and the learned counsel appearing for the second respondent would submit that they are not having any objections to condone the delay. 7.It is pertinent to note that the second respondent, who is mentally ill person represented by his next friend/wife would also submit that they are not having any objections. 4/7 https://www.mhc.tn.gov.in/judis C.M.P(MD)No.12661 of 2024 8.The learned Senior counsel appearing for the first respondent would rely on the recent decision of Hon'ble Supreme Court in H.Guruswamy and others Vs.A.Krishnaiah Since deceased by Lrs, reported in 2025 SCC Online SC 54, wherein the Hon'ble Apex Court has held that while considering the plea for condonation of delay, the court must not start with the merits of the main matter; that the court owes a duty to first ascertain the bona fides of the explanation offered by the party seeking condonation; that it is only if the sufficient cause assigned by the litigant and the opposition of the other side is equally balanced that the Court may bring into aid the merits of the matter for the purpose of condoning the delay. 9.Admittedly, the petitioner is the sister of the respondents 1 and 2 and she had defended the suit filed by the first respondent brother on the ground that her mother had executed a Will in his favour. Since the Will was rejected by the trial Court and accepted the case of the first respondent brother, according to the petitioner, she was advised that she is having a good case in the appeal and because of the ill health, she could not present the appeal within the time stipulated. 10. Considering the entire facts and circumstances of the case and also taking note of the relationship between the parties and also the fact that the other respondents have stated no objections, this Court is of the view that the petitioner should be given an opportunity to prosecute the appeal and for that purpose, the 5/7 https://www.mhc.tn.gov.in/judis C.M.P(MD)No.12661 of 2024 delay has to be condoned. But at the same time, considering the length of delay, this Court is of the further view that the petitioner must be mulcted with costs. 11. In the result, the Civil Miscellaneous Petition will be allowed on payment of cost of Rs.5,000/- (Rupees Five Thousand Only) to the Legal Services Authority, attached to this Bench and Rs.5,000/- (Rupees Five Thousand Only) to the first respondent by the petitioner, on or before 13.02.2025, failing which this petition shall stand dismissed automatically. 12. Post the matter on 14.02.2025, 'for reporting compliance'. sd/- 31/01/2025 / TRUE COPY / /02/2025 Sub-Assistant Registrar ( C.S. I / II / III / IV ) Madurai Bench of Madras High Court, Madurai - 625 023. DAS TO THE OFFICER INCHARGE, LEGAL SERVICES AUTHORITY, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI. 6/7 https://www.mhc.tn.gov.in/judis C.M.P(MD)No.12661 of 2024 ORDER IN C.M.P(MD)No.12661 of 2024 in A.S(MD)SR No.33277 of 2024 Date :31/01/2025 SA/VR/SAR. /07.02.2025/7P/2C Madurai Bench of Madras High Court is issuing certified copies in this format from 17/07/2023. 7/7 https://www.mhc.tn.gov.in/judis