Brahmathejomayam Vedavyasa Trust v. Venugopalan and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **FRIDAY, THE 29TH DAY OF JANUARY 2021 / 9TH MAGHA, 1942** **RSA.No.353 OF 2020** **AGAINST THE ORDER IN I.A.No.3491/2019 IN AS 176/2019 DATED 27-02-2020 OF DISTRICT COURT, THRISSUR & THE CONSEQUENTIAL JUDGMENT DTD.27.2.2020 IN A.S.No.176/2019 OF DISTRICT COURT, THRISSUR** **OS 552/2013 OF PRINCIPAL SUB COURT, THRISSUR DTD.11.7.2019** ## **APPELLANTS/APPELLANTS/PLAINTIFFS:** **1 BRAHMATHEJOMAYAM VEDAVYASA TRUST, REPRESENTED BY PRESENT TRUSTEE AND SECRETARY, JAWAHARLAL, AGED 57 YERSS, S/O.KADAVIL VEETTIL JAYATHILAKAN, CHITTILAPPILLY VILLAGE, DESOM, THRISSUR TALUK.** **2 BRAHMATHEJOMAYAM VEDAVYASA TRUST, REPRESENTED BY PRESENT TRUSTEE MANOJ, AGED 57 YEARS, S/O.CHIRUKANDATH ASOKAN, CHITTILAPPILLY VILLAGE, DESOM, THRISSUR TALUK.** **BY ADVS. SRI.LINDONS C.DAVIS SRI.K.R.ARUN KRISHNAN SMT.E.U.DHANYA SMT.SEEMA.P.P.** R.S.A.No.353 of 2020 ..2.. ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** - **1 VENUGOPALAN, AGED 65 YEARS, S/O.C.G.BALAKRISHNAN, CHANDRAPPILLY MADAM, NAMA VILLAGE DESOM, KANAYANNUR TALUK, SANSKRIT COLLEGE ROAD, THRIPUNITHURA P.O, ERNAKULAM DISTRICT, PIN-682301.** - **2 RADHAKRISHNAN, AGED ABOUT 63 YEARS, S/O.C.G.BALAKRISHNAN, CHANDRAPPILLY MADAM, NAMA VILLAGE DESOM, KANAYANNUR TALUK, SASKRIT COLLEGE ROAD, THRIPUNITHURA.P.O, ERNAKULAM DISTRICT, PIN-682301.** - **3 KRISHNAKUMAR, AGED 60 YEARS, S/O.C.G.BALAKRISHNAN, CHANDRAPPILLY MADAM, NAMA VILLAGE DESOM, KANAYANNUR TLAUK, SANSKRIT COLLEGE ROAD, THRIPUNITHURA.P.O, ERNAKULAM DISTRICT, PIN-682301.** - **4 MANIKANDAN, AGED 54 YEARS, PRINTER, S/O.NARAYANAN, DEVI NIVAS, PALLAPRAM VILLAGE DESOM, PONNANI TALUK, PIN-679324.** - **5 RAJEEV, AGED 54 YEARS, AGRICULTURIST, S/O.MANDAMPULLY KANNAPPAN, NATTIKA VILLAGE, DESOM, CHAVAKKAD TALUK, PIN-686013.** **R1-3 BY ADV.SRI.R.RAMDAS R4-5 BY ADV. SRI.V.VISAL AJAYAN** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28-01-2021, THE COURT ON 29-01-2021 DELIVERED THE FOLLOWING:** R.S.A.No.353 of 2020 ..3.. ## **JUDGMENT** The appellants 1 and 2 are the present Secretary and Trustee respectively of Brahmathejomayam Vedavyasa Trust (hereinafter referred to as 'Trust'). The plaintiffs are the appellants. They filed O.S.No.552/2013 before the Principal Sub Court, Thrissur for declaration that the properties exclusively belong to the Trust and also for permanent prohibitory injunction restraining the defendants/respondents from entering into the property other than that of the capacity as the devotees of Amma or claiming any right over the property as per sale deed No.1473/1978 of Mundoor Sub Registrar's Office. The suit was dismissed for the reason that even though the plaintiffs were present, he was not ready to adduce evidence. Therefore, the evidence of the plaintiffs was closed and the suit was dismissed on merits instead of dismissing for default. For some time the Trust was R.S.A.No.353 of 2020 **==> picture [22 x 8] intentionally omitted <==** defunct. While so, the respondents 1 to 3 made an attempt to destroy the boundary and some of the properties of the Trust. Hence, the respondents 4 and 5 filed O.S.No.100/1997 before the Munsiff's Court, Thrissur stating that the said property is a public property. In O.S.No.100/1997 a counter claim was raised in the written statement for a declaration that the property is a Trust property. The counter claim was dismissed stating that valuation of counter claim exceeds pecuniary jurisdiction of the Munsiff's Court. An appeal was filed as A.S.No.322/2005 before the District Court, Thrissur which was also dismissed. The appellants have preferred O.P. (C)No.4187/2012 which was also dismissed by this Court making it clear that the appellants can recourse to appropriate remedies as provided by law. Therefore, the appellants preferred O.S.No.552/2013 before the Principal Sub Court, Thrissur for declaration that the properties are R.S.A.No.353 of 2020 **==> picture [22 x 8] intentionally omitted <==** owned by the Trust. 2. According to the appellants, O.S.No.552/2013 filed by the appellants and O.S.No.100/1997 of the Munsiff's Court, Thrissur were transferred and listed for joint trial on 17.6.2019. 3. On 17.6.2019, the appellants were not present. The defendants 4 and 5 were set exparte. Accordingly, the suit was dismissed with costs to the defendants. Aggrieved by the dismissal of O.S.No.552/2013, the appellants filed A.S.No.176/2019 along with I.A.No.3491/2019 to condone the delay of 45 days. The reasons stated in the affidavit in support of the application were that the 1[st] petitioner was out of station in connection with the employment and the 2[nd] petitioner was laid up. The learned District Judge dismissed the above I.A. on the reason that the delay has not been properly explained. R.S.A.No.353 of 2020 **==> picture [22 x 8] intentionally omitted <==** 4. Heard the learned counsel for the appellants and the learned counsel for the respondents. 5. This R.S.A. is admitted on the following substantial question of law:- Whether the first appellate court erred in dismissing the appeal without condoning delay by attributing negligence on the part of the appellants and without taking liberal approach in condoning the delay of 45 days? 6. The stand taken by the first appellate court is that sufficient cause was not made out to condone the delay in preferring the appeal. Going by the affidavit sufficient reasons were put forth in the application to condone the delay. It is settled principle of law that nobody would be allowed to enjoy the benefit of decree on technical reasons, but, on the other hand, the issue has to R.S.A.No.353 of 2020 ..7.. be resolved on the basis of rival contentions between the parties. 7. In **Collector, Land Acquisition, Anantnag & another v. Mst. Katiji & others** [1987 KHC 911] the Apex Court in paragraph 3 of the judgment adopted the following principles in matters instituted with a petition for condoning the delay:- _“1. Ordinarily a litigant does not stand to benefit by lodging an appeal late._ _2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties._ _3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner._ R.S.A.No.353 of 2020 ..8.. _4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay._ _5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk._ _6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.”_ 8. Making a justice oriented approach from this perspective, there was sufficient cause for condoning the delay by the appellate court. However, the inconvenience caused to the respondent can be compensated by way of cost. The delay is only for a period of 45 days. R.S.A.No.353 of 2020 **==> picture [22 x 8] intentionally omitted <==** 9. In the result, the R.S.A. is allowed. The order in I.A.No.3491/2019 in A.S.No.176/2019 and the consequential judgment dated 27.2.2020 stand set aside on deposit of Rs.5,000/- as cost before the first appellate court within thirty days from the date of this judgment and in case of failure to deposit the cost, the appeal will stand dismissed without any further order from this Court. The Registry is directed to forward a copy of this judgment to the first appellate court forthwith. On receipt of a copy of this judgment, the first appellate court shall dispose of the appeal within six months. Pending applications, if any, stand disposed of. Sd/- **N.ANIL KUMAR, JUDGE** skj