Chellappan v. George (RSA No.366 of 2020)

## **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.366 OF 2020** **AGAINST THE ORDER DTD.08.02.2016 IN IA 410/2015 IN UNNUMBERED A.S.... OF SUB COURT, KATTAPPANA** **OS 103/2007 DATED 19-07-2014 OF MUNSIFF'S COURT, PEERMADE** ## **APPELLANT/APPELLANT/DEFENDANT:** **CHELLAPPAN, AGED 83 YEARS, S/O.PADMANABHAN, PAKKUKANDATHIL HOUSE, PALLIKKUNNU KARA, ELAPPARA VILLAGE, PEERMADE.** **BY ADV. SRI.S.SACHITHANANDA PAI** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **GEORGE @ JIJI, AGED 47 YEARS, S/O.ELBY, PARAYIL HOUSE, PALLIKKUNNU KARA, ELAPPARA VILLAGE, PEERMADE TALUK, IDUKKI DISTRICT - 685 508.** **BY ADV. SRI.MATHEW JOHN BY ADV. SRI.MATHEW DEVASSI** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22-01-2021, THE COURT ON 29-01-2021 DELIVERED THE FOLLOWING:** R.S.A.No.366 of 2020 ..2.. ## **JUDGMENT** The defendant is the appellant. The plaintiff/respondent filed the suit for permanent prohibitory injunction restraining the defendant from trespassing into the plaint schedule property and committing any act of waste therein. The trial court decreed the suit. The parties are hereinafter referred to as the plaintiff and defendant according to their status in the trial court unless otherwise stated. 2. The defendant filed a suit before the very same court against the plaintiff and his wife for recovery of possession of 10.5 cents of property on the strength of title. The said suit was also decreed by the trial court. The plaint schedule property in the decree of recovery of possession includes the decree schedule in the injunction suit. The plaintiff filed an appeal against the decree of recovery of possession before the first appellate court and R.S.A.No.366 of 2020 ..3.. the same is pending. The appeal filed by the defendant challenging the decree of injunction was with a petition to condone the delay of 276 days in filing the appeal. The first appellate court dismissed the petition to condone the delay in filing the appeal and consequently the appeal was also dismissed. 3. This R.S.A. was filed with C.M.Application No.1/2020 to condone the delay of 1363 days in filing the appeal. This Court by order dated 17.11.2020 condoned the delay of 1363 days in filing the appeal. 4. This R.S.A. is admitted on the following questions of law:- 1. Whether the first appellate court is wrong in dismissing the application to condone the delay in the light of the peculiar facts and circumstances of the case? 2. In the light of the contradictory decrees R.S.A.No.366 of 2020 **==> picture [22 x 8] intentionally omitted <==** passed by the trial court and one of the appeals against the decree is admitted and is pending consideration, whether the first appellate court is justified in dismissing the petition to condone the delay in filing one of the appeals? 5. Heard the learned counsel for the appellant Sri.Sachithananda Pai and Sri.Mathew John, learned counsel for the respondent. 6. It is a fact that this Court condoned the delay of 1363 days in filing the R.S.A before this Court on payment of Rs.5,000/- to the learned counsel appearing for the respondent before this Court within a period of two weeks by the order dated 17.11.2020. So far as the A.S. before the first appellate court was concerned, the appeal was presented with a petition to condone the delay of 276 days in filing the appeal. The first appellate court failed to appreciate the fact that the appellant was aged 83 years R.S.A.No.366 of 2020 ..5.. and is undergoing treatment for cardiac, diabetes and blood pressure. Sufficient reason to condone the delay has been made out in the application filed by the defendant before the first appellate court to condone the delay. The dismissal of the petition to condone the delay by the first appellate court cannot be justified. Considering the facts and circumstances of this case particularly when a contradictory decree passed by the trial court and one of the appeals against the decree is admitted, it would have been proper for the appellate court to condone the delay in filing one of the appeals in the interest of justice. 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._ R.S.A.No.366 of 2020 ..6.. _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._ _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._ R.S.A.No.366 of 2020 ..7.. _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 in the institution of the appeal. When this Court has condoned the delay of 1363 days in preferring the R.S.A. on 17.11.2020, there is no justifiable reason to disallow the application for condonation of delay filed before the first appellate court. Since an amount of Rs.5,000/- has already been paid by the appellant as cost to the respondent, no further cost is imposed in this appeal. I.A.No.410/2015 in unnumbered A.S. stands allowed. The delay in filing the appeal is condoned. In the result, the R.S.A is allowed. The order in I.A.No.410/2015 in unnumbered A.S. dated 08.02.2016 and consequential rejection of the appeal by the first R.S.A.No.366 of 2020 **==> picture [22 x 8] intentionally omitted <==** appellate court stand set aside. The first appellate court is directed to number the appeal in accordance with rules. The first appellate court will now dispose of the appeal on merits after affording a reasonable opportunity of hearing to both sides. There will be no order as to costs. Pending applications, if any, stand disposed of. Sd/- **N.ANIL KUMAR, JUDGE** skj