Ambujakshi and Others v. Aravindakshan and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **FRIDAY, THE 1[ST] DAY OF MARCH 2024 / 11TH PHALGUNA, 1945** **RSA NO. 505 OF 2023** **AGAINST THE JUDGMENT AND DECREE IN A.S.NO.202/2011 OF ADDITIONAL DISTRICT COURT-II (SPECIAL COURT), KOTTAYAM ARISING OUT OF THE JUDGMENT AND DECREE IN O.S.NO.311/2010 OF MUNSIFF COURT, VAIKOM APPELLANTS/APPELLANTS/DEFENDANTS:** **1 AMBUJAKSHI AGED 69 YEARS D/O.PAPPU, RESIDING AT MANNATHUMUKEMYALIL (H), KIZHAKKEKKARA MURI, VADAYAR (P.O.), VADAYAR VILLAGE, VAIKOM TALUK, PIN - 686141** **2 JAYAMANI AGED 43 YEARS D/O.AMBUJAKSHI, RESIDING AT MANNATHUMUKEMYALIL (H), KIZHAKKEKKARA MURI, VADAYAR (P.O.), VADAYAR VILLAGE, VAIKOM TALUK, PIN - 686141** **3 SHAJI AGED 48 YEARS S/O.GOPALAN, RESIDING AT MANNATHUMUKEMYALIL (H), KIZHAKKEKKARA MURI, VADAYAR (P.O.), VADAYAR VILLAGE, VAIKOM TALUK, PIN - 686141** **BY ADV V.VISAL AJAYAN** ## **- RESPONDENTS/RESPONDENTS AND ADDL.R2 R4/PLAINTIFF AND NO PARTY TO** **OS:** **1 ARAVINDAKSHAN AGED 73 YEARS S/O.KUTTY, CHEMPILAYIL HOUSE, KIZHAKKEKKARA MURI, VADAYAR (P.O.), VADAYAR VILLAGE, VAIKOM TALUK. (DIED), PIN - 686141** **2 SUMITRA W/O.ARAVINDAKSHAN, CHEMPILAYIL HOUSE, VADAYAR P.O, KIZHAKKEKARAMURI, VADAYAR VILLAGE, VAIKOM TALUK, KOTTAYAM, PIN - 686141** **2** ## **RSA NO. 505 OF 2023** **3 REMYA D/O.LATE ARAVINDAKSHAN, CHEMPILAYIL HOUSE, VADAYAR P.O KIZHAKKEKARAMURI, VADAYAR VILLAGE, VAIKOM TALUK, KOTTAYAM, PIN - 686141** - **4 RATHEESH** **D/O.LATE ARAVINDAKSHAN, CHEMPILAYIL HOUSE, VADAYAR P.O KIZHAKKEKARAMURI, VADAYAR VILLAGE, VAIKOM TALUK, KOTTAYAM, PIN – 686141** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20.02.2024 AND THE COURT ON 01.03.2024 DELIVERED THE FOLLOWING:** **RSA NO. 505 OF 2023** **3** ## **JUDGMENT IN RSA No.505/2023** ## **&** ## **ORDER IN C.M.Appl.No.1/2023 & I.A.No.2/2023** Dated this the 1[st] day of March, 2024 This regular second appeal has been filed under Section 100 read with Order XLII Rule 1 of the Code of Civil Procedure, 1908, challenging the decree and judgment dated 18.03.2017 in A.S.No.202/2011 on the files of the Additional District Judge-II, Kottayam, arose out of the decree and judgment dated 27.07.2011 in O.S.No.311/2010 on the files of the Munsiff's Court, Vaikom. 2. Heard the learned counsel for the appellants/petitioners in this matter. 3. The appellants herein, who are defendants in O.S.No.311/2010, have filed this regular second appeal along with C.M.Appl.No.1/2023, with a prayer to condone delay of 2176 days in filing the regular second appeal. The learned **RSA NO. 505 OF 2023** **4** counsel for the appellants/petitioners reiterated the averments in paragraph Nos.2 and 3 of the affidavit in support of the petition to justify the long delay of 2176 days. 4. On perusal of the affidavit in support of the petition and the arguments advanced by the learned counsel for the appellants/petitioners, A.S.No.202/2011 was dismissed on 18.03.2017. The appellants filed copy application on 21.03.2017 and the copy was ready on 06.05.2017. But they received the same only on 11.05.2023, after a period of six years. The second appeal ought to have been filed lastly on 03.08.2017. The reasons for not preferring the appeal in time are stated in paragraph No.3 of the affidavit in support of the petition. It was averred by Ambujakshi/1[st] appellant that she was under the genuine impression that the respondents would not proceed against the appellants as per the decree obtained by them since there was settlement ensued between the parties. It was also averred that thereafter, Ambujakshi came to know about the proceedings in E.P.No.48/2021 without **RSA NO. 505 OF 2023** **5** ## considering the mutual understanding. 5. In this context, it is relevant to note that after dismissal of the first appeal on 18.03.2017, the decreeholders/ respondents herein filed execution petition in the year 2021 and the appellants received notice thereon. However, they did not care to file an appeal, challenging the verdict of the appellate court, till 21.07.2023. Therefore, the story of settlement after suffering consecutive verdicts also not digestible to prudence. Thus, it appears that there are no _sufficient reasons_ or _justifiable grounds_ stated to condone a long delay of 2176 days in filing this regular second appeal. 6. In this context, it is apposite to extract Section 5 of the Limitation Act, 1963 and the same is as follows: ## _**“5. Extension of prescribed period in certain cases**_ _Any appeal or any application, other than an application under any of the provisions or Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient_ **RSA NO. 505 OF 2023** **6** _cause for not preferring the appeal or making the application within such period.”_ 7. It is true that “sufficient cause” is the decisive factor while condoning the delay. Though it has been settled that liberal view should be taken while condoning delay, it is equally settled that when the delay sought to be condoned on account of any dilatory tactics without bonafides, with deliberate inaction or negligence, such a concession also is not possible. In this connection, it is relevant to refer the latest decision of the Apex Court in **Majji Sannemma alias Sanyasirao v. Reddy Sridevi and Others** reported in **AIR 2022 SC 332** , wherein the Apex Court considered condonation of delay of 1011 days. In the said judgment, the Apex Court relied on the decision in **P.Ramachandran v. State of Kerala and Anr.** reported in **(1997) 7 SCC 556,** wherein condonation of delay of 565 days was refused and held in paragraph No.7 to 8 are as under: **RSA NO. 505 OF 2023** **7** - _“7. At this stage, a few decisions of this Court on delay in filing the appeal are referred to and considered as under:_ - _7.1 In the case of Ramlal, Motilal and Chhotelal v.Rewa Coalfields Ltd. (AIR 1962 SC 361), it is observed and held as under:-_ _In construing s. 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chattappan, (1890) J.L.R. 13 Mad. 269, "s. 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood;_ **RSA NO. 505 OF 2023** **8** _the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant."_ - _7.2 In the case of P.K. Ramachandran v. State of Kerala and Anr. (AIR 1998 SC 2276), while refusing to condone the delay of 565 days, it is observed that in the absence of reasonable, satisfactory or even appropriate explanation for seeking condonation of delay, the same is not to be condoned lightly. It is further observed that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. It is further observed that while exercising discretion for condoning the delay, the court has to exercise discretion judiciously._ - _7.3 In the case of Pundlik Jalam Patil V. Executive Engineer [(2008) 17 SCC 448], it is observed as under: "The laws of limitation are founded on public policy. Statutes of limitation are sometimes described as "statutes of peace". An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. The principle is based on the maxim "interest reipublicae ut sit finis litium", that is, the interest of the State requires that there should be end to litigation but at the same time laws of limitation are a means to ensure private justice suppressing fraud and perjury, quickening diligence and preventing oppression. The object for_ **RSA NO. 505 OF 2023** **9** _fixing timelimit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy”._ _7.4 In the case of Basawaraj and Anr V. Special Land Acquisition Officer (AIR 2014 SC 746), it is observed and held by this Court that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case. It is further observed that the expression "sufficient cause" cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party. It is further observed that even though limitation may harshly affect rights of a party but it has to be applied with all its rigour when prescribed by statute. It is further observed that in case a party has acted with negligence, lack of bona fides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. It is observed that each application for condonation of delay has to be decided within the framework laid down by this Court. It is further observed that if courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to legislature._ **RSA NO. 505 OF 2023** **10** - _7.5 In the case of Pundlik Jalam Patil (supra), it is observed by this Court that the court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The Courts help those who are vigilant and "do not slumber over their rights"._ _8. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and considering the averments in the application for condonation of delay, we are of the opinion that as such no explanation much less a sufficient or a satisfactory explanation had been offered by respondent Nos.1 and 2 herein - appellants before the High Court for condonation of huge delay of 1011 days in preferring the Second Appeal. The High Court is not at all justified in exercising its discretion to condone such a huge delay. The High Court has not exercised the discretion judiciously. The reasoning given by the High Court while condoning huge delay of 1011 days is germane. Therefore, the High Court has erred in condoning the huge delay of 1011 days in preferring the appeal by respondent Nos. 1 and 2 herein-original defendants. Impugned order passed by the High Court is unsustainable both, on law as well as on facts.”_ 8. Since no valid reasons could be found to condone a long delay of 2176 days, this petition must fail. Accordingly, C.M.Appl.No.1/2023 stands dismissed. **RSA NO. 505 OF 2023** **11** 9. Consequently, RSA No.505/2023 also stands dismissed as time barred. 10. In this matter, I.A.No.2/2023 is a petition filed by the appellants/petitioners to refund the excess court fee of Rs.2880/- (Rupees two thousand eight hundred and eighty only) remitted by the appellants/petitioner. Registry noted that the said amount is the excess court fee paid. Therefore, I.A.No.2/2023 stands allowed and it is ordered to refund Rs.2880/- (Rupees two thousand eight hundred and eighty only) to the appellants as per law without fail. 10. All interlocutory applications, except I.A.No.2/2023, pending in this regular second appeal stand dismissed. Registry shall inform this matter to the trial court as well as the appellate court forthwith. **Sd/A. BADHARUDEEN JUDGE** nkr