Aravindakshan @ Rajan v. Janaki and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **TUESDAY, THE 16[TH] DAY OF JANUARY 2024 / 26TH POUSHA, 1945** **RSA NO. 194 OF 2022** **AGAINST THE DECREE AND JUDGMENT DATED 11.08.2021 IN AS 98/2020 OF ADDITIONAL DISTRICT COURT- V, PALAKKAD THE DECREE AND JUDGMENT DATED 28.10.2017 IN OS 155/2011 OF MUNSIFF** **COURT, CHITTUR** ## **APPELLANT/APPELLANT/1ST DEFENDANT:** **ARAVINDAKSHAN @ RAJAN AGED 60 YEARS PERUMKULANGARA, THATHAMANGALAM, CHITTUR TALUK, PIN - 678572 BY ADVS. SASI M.R. SILPA N.P DHARMYA M.S KAVYA KRISHNAN** ## **RESPONDENTS/RESPONDENTS 1 TO 13/PLAINTIFFS 1 & 2 AND DEFENDANTS 3** **TO 13:** |**1**|**JANAKI**| |---|---| ||**DOOR NO. 6/8, CHERAN NAGAR,**| ||**PAANAPALAYAM, PALLADAM, COIMBATORE,**| ||**PIN - 641664**| |**2**|**RAJESWARI**| ||**DOOR NO. 6/8, CHERAN NAGAR,**| ||**PAANAPALAYAM, PALLADAM, COIMBATORE,**| ||**PIN - 641664**| |**3**|**RAMACHANDRAN**| ||**PERINGUDIYIL, 200 (H),**| ||**AMBEDKARPURACHI NAGAR, VASANTHAVELANTHERIVU,**| ||**CHENNAI, PIN - 600096**| |**4**|**PUSHPALOCHANA**| ||**MUKKARANGADU HOUSE, KOTTEKADU, PALAKKAD,**| ||**PIN - 678732**| |**5**|**BHAGYALOCHANA**| ||**SIDCO, GOUNDANPALAYAM A P TEXTILES,**| ||**SHED NO. 7, PALLADAM, GANAPATHYPALAYAM,**| ||**COIMBATORE DISTRICT., PIN - 638153**| **RSA NO. 194 OF 2022** **2** - **6 CHANDRIKA KORIARCHALLA, KUTTIPPALLAM, CHITTUR, PALAKKAD, PIN - 678101** - **7 MAYADEVI KORIARCHALLA, KUTTIPPALLAM, CHITTUR, PALAKKAD, PIN - 678101** - **8 SUMATHI ALAYAR, VANDITHAVALAM VILLAGE, CHITTUR TALUK, PIN - 678534** - **9 INDUJA ALAYAR, VANDITHAVALAM VILLAGE, CHITTUR TALUK, PIN - 678534** - **10 ANANTHAKRISHNAN VALIYACHALLA, GOVINDAPURAM, CHITTUR TALUK, MATHALAMADA VILLAGE, PIN - 678507** - **11 BALABHASKARAN VALIYACHALLA, GOVINDAPURAM, CHITTUR TALUK, MUTHALAMADA VILLAGE, PIN - 678507** - **12 USHAKUMARI VALIYACHALLA, GOVINDAPURAM, CHITTUR TALUK, MUTHALAMADA VILLAGE, PIN - 678507** - **13 ASHAKUMARI VALIYACHALLA, GOVINDAPURAM, CHITTUR TALUK, MUTHALAMADA VILLAGE, PIN - 678507** **BY ADVS. PRABHA R.MENON FOR R1 TO R7, R11 TO R13 SYAM J SAM J FOR R8 AND R9** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON 16.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA NO. 194 OF 2022** **3** ## **JUDGMENT** Dated this the 16[th] day of January, 2024 This regular second appeal has been filed under Section 100 read with Order XLI Rule 1 of the Civil Procedure Code (hereinafter referred to as 'CPC' for short), challenging the decree and judgment dated 11.08.2021 in A.S.No.98/2020 on the files of the Additional District Court-V, Palakkad, whereby the Additional District Judge confirmed the final decree and judgment in final decree application (hereinafter referred to as 'FDIA', for short) No.2595/2012 in O.S.No.155/2011 on the files of the Munsiff's Court, Chittur, Palakkad. 2. Heard the learned counsel for the appellant, who is the first respondent in F.D.I.A.No.2595/2012 and the first defendant in O.S.No.155/2011. No representation for the respondents. 3. I shall refer the parties in this regular second **RSA NO. 194 OF 2022** **4** appeal as 'plaintiffs/petitioners' and '1[st] defendant/1[st] respondent' for convenience. 4. As per order dated 01.04.2022, my learned predecessor admitted this regular second appeal raising the following substantial question of law: _“(i) Has the First Appellate Court drawn the necessary inferences and presumptions that would apply on the facts and circumstances of the case?”_ 5. The plaintiffs filed suit for partition and accordingly, preliminary decree of partition was passed. Thereafter, the plaintiffs filed F.D.I.A.No.2595/2012 to pass final decree. As per judgment dated 28.10.2017, the learned Munsiff passed final decree, after considering the objection filed by the appellant herein, who is the 1[st] respondent in FDIA/1[st] defendant in the suit. When the commission report and plan were filed, a petition was also filed by the 1[st] respondent/1[st] defendant to set aside the commission report as **RSA NO. 194 OF 2022** **5** I.A.No.675/2015. Going by the objection raised by the 1[st] respondent/1[st] defendant, the same is that, item No.5 property in the preliminary decree schedule to be allotted to him and he could be given permission to purchase the shares of the other parties in the final decree. According to him, apart from item No.5 in the preliminary decree, there is no property for the 1[st] respondent for using the same as threshing floor to facilitate paddy cultivation. 6. On perusal of the final judgment, it could be seen that even though the 1[st] respondent/1[st] defendant filed I.A.No.675/2015 for setting aside the commission report and plan on 27.10.2015, he did not proceed with the petition to substantiate the contention and accordingly, the said petition was dismissed on 05.08.2017. The learned Munsiff recorded all those aspects in paragraph No.6 of the final judgment and the same is as under: _“Thereafter on reporting the death of the 3[rd] respondent, his legal heirs were impleaded as_ **RSA NO. 194 OF 2022** **6** _the supplemental respondents 10 to 13. The supplemental respondents 10 to 13 after entering appearance did not file any counter statement to the final decree application or any objection as against the commission report and plan filed dated 27.10.2015. So also the respondents 2, 4 to 9 also reported no objection in the commission report and plan filed dated 27-8-2015 for the purpose of passing of final decree based on the contents in the above commission report and plan. Although the 1[st] respondent filed I.A.No.675/2015 for the purpose of setting aside the commission report and plan filed dated 27-102015, no steps were taken by the 1[st] respondent/1[st] defendant for proceeding with the said application seeking setting aside of the commission report and plan. Owing to the said reason, I.A.No.675/2015 filed by the 1[st] respondent for setting aside the commission report and plan filed dated 27-08-2015 is dismissed by this court on 5-8-2017. Thereafter it was submitted by the learned counsel for both parties that they have no objection in passing the final decree based on the contents in the commission report and plan filed_ **RSA NO. 194 OF 2022** **7** _dated 27-8-2015. Therefore the commission report and plan are marked as Exts.C1 and C1(a). As both parties have sought passing of final decree based on the contents in Exts.C1 and C1(a) and the modality of partition as reported by the commissioner in Exts.C1, C1(a) is found to be the fair and equitable, the same are accepted and final decree is passed in terms of Exts.C1, C1(a) as follows:”_ 7. After passing the final decree, the same got engrossed in non-judicial stamp paper and the same parties to the final decree filed execution petition for getting their separate shares delivered as per the final decree. Some of them even got delivery of the shares. At this point of time, the 1[st] respondent/1[st] defendant filed A.S.No.98/2020 before the Additional District Court-V, Palakkad, along with I.A.No.1/2020 to condone delay of 917 days in filing the appeal. 8. The reasons for condoning the delay, according to the 1[st] defendant/1[st] respondent, are L2, L3 compression and **RSA NO. 194 OF 2022** **8** transforminal Lumbar inter-body fusion for one year. But the plaintiffs/petitioners resisted the contentions, denying the infirmity alleged by the 1[st] defendant/1[st] respondent. The appellate court ventured the bona fides of the petitioner in preferring the appeal. In paragraph Nos.6 and 7 of the order in I.A.No.1/2020, the learned appellate Judge found that the 1[st] defendant/1[st] respondent appeared before the trial court in E.P.No.9/2020 on 17.03.2020, as evident from the copy of E.P.No.9/2020 produced by the respondents. It was also noted by the trial court that the summons in E.P.No.9/2020 was served upon the 1[st] defendant/1[st] respondent on 19.02.2020. The omission on the part of the advocate to inform passing of final decree is stated as another reason. 9. Paragraph No.7 of the order in I.A.No.1/2020 is relevant and the same is extracted hereunder: _“The contention of the counsel for the respondents in this appeal is that the petitioner/appellant who is the respondent No.1 in_ **RSA NO. 194 OF 2022** **9** _EP 9/2020 in FDIA 2595/2012 in O.S.155/2011 appeared before the lower court on 17.03.2020. The respondents produced the certified copy of the petition in EP 9/2020 and its docket order to substantiate his case. The petitioner/appellant himself admitted that he got summons in EP 9/2020 in the first week of February 2020. The present appeal is filed on 03.06.2020. The contention of the counsel for the petitioner is that he came to know about the passing of final decree only when he received summons in EP 9/2020. The summons in EP 9/2020 is seen served on 19.02.2020, but the application for the certified copy of the final decree was seen filed on 10.03.2020. The other contention of the petitioner is that the delay of 917 days was caused due to the omission on the part of the advocate to inform him about the final decree. The final decree was passed in the year 2017. The appeal is filed only on 03.06.2020. The document produced by the petitioner itself would show that he was laid up much before passing of final decree and there are no averments in the petition to the effect that though the final decree application was filed in the year 2012, the petitioner has made effective steps_ **RSA NO. 194 OF 2022** **10** _to pursue the proceedings till the filing of the appeal in the year 2020. Mere averments in the petition that, the delay was caused due to the omission on the part of the advocate to inform the petitioner about the final decree is not sufficient to condone the delay. Even though the petitioner stated that the delay was caused due to the omission on the part of his advocate, the averments in the petition would show that in the first week of February 2020 itself, the petitioner got summons in EP 9/2020 and he appeared in the said matter. The petitioner failed to explain why he did not prefer any application for certified copy of final decree till 10.03.2020. It is pertinent to note that the litigant is also has a duty to be vigilant of his rights and is also expected to be equally vigilant about the judicial proceedings pending in the court. The litigant cannot be permitted to cast the entire blame on the advocate as to get the delay condoned. If the litigant did not turn up to obtain the copy of the judgment so as to find out what orders are passed by the court, he is liable to bear the consequences. The counsel for the respondents submitted that several execution petitions were_ **RSA NO. 194 OF 2022** **11** _filed by the party concerned to get the delivery affected and the intention of the petitioner who was allotted plaint 'B' schedule property, is to drag the proceedings. The reasons stated in the application are vague and critic. The averments made in the application do not inspire confidence. Therefore I am of the view that there exists no reasonable and plausible explanation to condone the delay of 917 days.”_ 10. In this matter, the 1[st] defendant/1[st] respondent, who had been resisting the final decree application, finally conceded passing of final decree through his counsel and accordingly, final decree passed as early on 27.10.2017. He did not file any appeal even after passing the final decree for about three years and when he received notice in the execution petition alone, he applied for a certified copy of the final decree application. The serious ailment of the 1[st] defendant/1[st] respondent not at all established by examining any medical practitioner or by any cogent and convincing evidence, apart from producing a photocopy of discharge **RSA NO. 194 OF 2022** **12** summary issued from a private medical hospital. Thus, the appellate court found that no sufficient cause established to justify condonation of the long delay of 917 and accordingly the delay petition was dismissed and consequently, the appeal also was dismissed. 11. Going by the contentions as regards the sufficient cause to condone the delay, in fact, the 1[st] defendant/1[st] respondent failed to raise sufficient reasons to condone the long delay. 12. 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 cause for not preferring the appeal or making the application within such period.”_ **RSA NO. 194 OF 2022** **13** 13. 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, the learned counsel for the plaintiff placed 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: - “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_ **RSA NO. 194 OF 2022** **14** _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._ **RSA NO. 194 OF 2022** **15** _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; 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._ **RSA NO. 194 OF 2022** **16** _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 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”._ **RSA NO. 194 OF 2022** **17** _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_ **RSA NO. 194 OF 2022** **18** _disregard to legislature._ _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_ **RSA NO. 194 OF 2022** **19** _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.”_ 14. Even otherwise, the intention of the 1[st] defendant/1[st] respondent could be gathered from his objection to the effect that he wants to get all the shares transferred in his favour. Thus, the first appeal preferred before the appellate court with a delay of 917 days without establishing sufficient cause was rightly dismissed by the Appellate court and consequently, the appeal also was dismissed. 15. Since the dismissal of I.A.No.1/2020 in A.S.No.98/2020 by the First Appellate Court found to be in order, the first appellate court not failed to draw necessary inferences and presumptions in the facts and circumstances of the case. Therefore, the challenge against the decree and judgment in A.S.No.98/2020, for want of condonation of **RSA NO. 194 OF 2022** **20** delay, does not require any interference at the instance of this Court. In the result, this regular second appeal stands dismissed. All interlocutory orders stand vacated and all interlocutory applications 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