C. Ramadasan v. Madhavan and State of Kerala and Appellate Authority (LR), Kannur

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **FRIDAY, THE 08TH DAY OF JANUARY 2021 / 18TH POUSHA, 1942** ## **OP(C).No.2780 OF 2015(O)** **ORIGINAL PETITION (CIVIL) PRESENTED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA** ## **PETITIONER:** **C.RAMADASAN, S/O.LATE KUNHAPPA ASARY, CHITINAL, KALIYASSERI AMSOM, KANNUR DISTRICT.** **BY ADVS. SRI.K.I.MAYANKUTTY MATHER SRI.JOSE JOSEPH (CHEMPLAYIL)** ## **RESPONDENTS:** **1 MADHAVAN, S/O.LATE KUNHAPPA ASARY, SANTHRAM, CHITINAL, P.O.MANGAD, KANNUR-670002. 2 STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, THIRUVANANTHAPURAM-695001. 3 APPELLATE AUTHORITY (LAND REFORMS), KANNUR-670001. R1 BY ADV. SRI.V.BINOY RAM** ## **OTHER PRESENT:** **SRI. SYAMJIRAM (G.P) R2,R3** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 08.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(C).No.2780 OF 2015(O) 2** ## **Dated this the 8th day of January, 2021** ## **JUDGMENT** Being aggrieved by Ext.P6 order passed by the Appellate Authority (LR) **,** Kannur refusing to condone delay in filing appeal and dismissing I.A.No.225 of 2013 in A.A.No.79 of 2013 is challenged by the first respondent therein. 2. The first respondent in A.A.No.79 of 2013 had initiated proceedings before Land Tribunal, Thaliparamba in O.A. No.4304 of 1976 for assignment and by order dated 8.5.1976, his claim was upheld. The sole respondent, who contested the OA is the second respondent in AA No.79 of 2013. Following Ext.P1 order in OA 4304 of 1976, Purchase Certificate was also issued. 3. The first respondent in this OP, who was not made a party to the OA proceedings was ## **OP(C).No.2780 OF 2015(O) 3** aggrieved by the purchase certificate issued since according to him, he too was a sharer in the property and without him being heard, the purchase certificate ought not to have been legally issued. He therefore, filed AA.No.79 of 2013 before the Appellate Authority (LR), Kannur challenging Ext.P1 order in OA.4304 of 1976. He admitted that appeal was delayed by 13,635 days and sought to condone the delay on the ground that he got knowledge of the purchase certificate only when it was produced by the respondent in O.S.43 of 2012. The plea for condonation of delay was opposed by the first respondent in appeal and he contended that sufficient cause pleaded in support of condonation of delay was factually wrong. 4. The appellate authority after hearing the parties and perusing the affidavits sworn to by rival parties held that reason stated by the appellant was satisfactory and accordingly, **OP(C).No.2780 OF 2015(O) 4** delay was condoned. The first respondent in Ext.P6 order is greatly aggrieved by the order. 5. I heard the learned counsel for the petitioner and the learned counsel for the first respondent, who is the appellant in Ext.P6 proceeding. 6. The learned counsel for the appellant submitted that Ext.P6 order cannot be supported under law for any reasons and in any view of the matter, it is quite arbitrary and liable to be interfered with in this proceeding. The argument is to the effect that the appellate authority failed to assign reason for condoning delay except stating that he was satisfied with the ground pleaded by appellant for condoning delay. 7. On the other hand, the learned counsel for the first respondent supported the order contending that the view taken by the appellate authority is perfectly right. Learned counsel **OP(C).No.2780 OF 2015(O) 5** further submitted that as a matter of fact, delay of 37 years was quantified on a wrong assumption and the delay involved is not very substantial. As per Section 102(2) of the Kerala Land Reforms Act, the appeal ought to be instituted within a period of 60 days from the date when the impugned order came to the knowledge of the aggrieved party. The appellant being not a party to OA proceedings, it is contended that he got knowledge of Ext.P1 order only in 2012 and he instituted the appeal in the next year. According to the learned counsel for the appellant in this OP, the submission made is factually incorrect since the suit was filed in 2009 which was later renumbered as OS.No.53 of 2012. 8. I am aware, as enlightened by the learned counsel for the first respondent relying on _**Thayyil Muhammed v. Koorimannil Pattiyil Showkath Ali and Otjhers (2014 (4) KHC**_ ## **OP(C).No.2780 OF 2015(O) 6** _**253)**_ that liberal view shall be taken in the matter of condoning delay in filing appeals and the rights of the parties ought to be decided on merits. 9. On going through Ext.P6 order, I do not however, find any reason assigned by the appellate authority for accepting the cause pleaded by the appellant. The appellant contended that he came to know of OA proceedings only when it was produced in the original suit by the respondent. The date of knowledge being a material fact ought to have been enquired into by the appellate authority and it was quite improper for the authority to have accepted the mere sworn statement of the appellant when it was controverted by the respondent in the counter affidavit. It is essential for authorities to conduct enquiry by collecting oral or other evidences when a fact disputed requires to be decided. ## **OP(C).No.2780 OF 2015(O) 7** 10. I fail to understand as to why appellate authority abstained from resorting to such a procedure and examine the parties. In the absence of such enquiry being conducted and evidence collected, it was quite illegal for the appellate authority to have passed the impugned order based on the mere sworn statement of the appellant. 11. I am of the view that the matter requires to be enquired into afresh in the light of oral or other evidence if made available before it by parties. In view of what has been discussed above, the impugned order requires only to be interfered with and remitted back for fresh enquiry and decision. In the result, Original Petition succeeds and Ext.P6 order is set aside and the appellate authority is directed to conduct an equiry giving opportunities to parties on both sides and decide the issue afresh in the light of the ## **OP(C).No.2780 OF 2015(O) 8** new evidence being adduced. It is made clear that this Court has not expressed its view on merits and it will be open to the appellate authority to take any decision of its choice strictly in accordance with law bearing on the issue. This being an old matter, the appellate authority shall take all efforts to dispose of I.A.No.225 of 2013 within a period of three months from the date of receipt of certified copy of this judgment. **sd/-** **T.V.ANILKUMAR, JUDGE** pm **OP(C).No.2780 OF 2015(O) 9** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER OF THE LAND TRIBUNAL IN OA 4304/1976 DATED 8.5.1976.** **EXHIBIT P1(a) TRUE COPY OF THE PURCHASE CERTIFICATE IN OA 4304/1976 DATED 27.4.1977.** **EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN OS 53/2012 AND 69/2012 SUB COURT, KANNUR DATED 22.10.2012.** **EXHIBIT P3 TRUE COPY OF THE APPEAL (A.A.NO.79 OF 2013) FILED BY THE 1ST RESPONDENT BEFORE THE APPELLATE AUTHORITY (LAND REFORMS), KANNUR DATED 11.9.2013.** **EXHIBIT P4 TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF THE APPLICATION FOR CONDONATION OF DELAY (IA NO.225/2013) FILED BY THE PETITIONER DATED 11.9.2013.** **EXHIBIT P5 TRUE COPY OF THE COUNTER FILED BY THE PETITIONER IN IA 225/2013 DATED 10.12.2013.** **EXHIBIT P6 TRUE COPY OF THE ORDER OF THE APPELLATE AUTHORITY (LAND REFORMS), KANNUR IN IA 225/2013 IN 79/2013 DATED 30.9.2015.** **RESPONDENTS' EXHIBITS: NIL**