C.M.A.No.765/2010 in R.P.No.889/2010 in S.A.No.195/1994

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 9[TH] DAY OF JANUARY 2023 / 19TH POUSHA, 1944** **RP NO. 889 OF 2010** **AGAINST THE JUDGMENT IN S.A. NO. 195/1994 OF HIGH COURT OF KERALA** **- PETITIONER IN R.P. APPELLANT NO.6 IN S.A:** NELSON, RESIDING AT KUTTAPPACHERRY, ST.JOHN PATTATHIL, FORT COCHIN. BY ADVS. SRI.P.B.KRISHNAN SRI.N.AJITH SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN SRI.R.SURAJ KUMAR **- RESPONDENTS IN R.P. RESPONDENTS 5, 6, 7, 9, 10 & APPELLANTS** **1 TO 3 & 5 IN R.S.A.:** 1 JANAT AND OTHERS PANACHIKKAL, ST.JOHN PATTATHIL, FORT COCHIN. 2 THRESA, W/O.BENJAMIN RESIDING AT DO. DO. 3 SOPHIA, W/O.LATE JOB RESIDING IN DO. DO. 4 GLADIS, D/O.LATE JOB RESIDING IN DO. DO. 5 JOSEPH S/O.LATE DEVASSY, RESIDING AT KUTTAPPASSERY, ST.JOHN PATTACHIL, FORT COCHIN. (DELETED) (RESPONDENT NO.5 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE REVIEW PETITIONER AS PER THE ORDER DATED 19/06/2018 IN I.A. NO.1619/2018) C.M.A.No.765/2010 in R.P.No.889/2010 in S.A.No.195/1994 2 6 KARMALI, W/O.LATE K.J.DEVASSY RESIDING IN DO. DO. 7 VARGHESE, S/O.DO. IN DO. DO. 8 PHILIOMINA, D/O.DO. IN DO.DO. 9 JANET, D/O.DO. RESIDING IN DO. DO. BY ADV A.KRISHNAN **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 15.12.2022, THE COURT ON 09.01.2023 DELIVERED THE FOLLOWING:** C.M.A.No.765/2010 in R.P.No.889/2010 in S.A.No.195/1994 3 ## **M.R.ANITHA, J** ****************** C.M.Appl.No.765 of 2010 & R.P.No.889 of 2010 in S.A.No.195 of 1994 ---------------------------------------------------------Dated this the 09[th ] day of January, 2023 ## **O R D E R** This petition has been filed to condone the delay of 680 days in filing the review petition. The review petitioner filed supporting affidavit contending that the review petition has been filed seeking to review the judgment in S.A.No.195/1994 dated 06.03.2008. Copy application was filed on 18/01/2010 and stamp papers were called and produced on 19/01/2010. Certified copy was taken delivery on 20/01/2010. According to the petitioner, the suit was filed against the late father of the petitioner and during the pendency of the proceedings before the appellate court, the father died and his widow and children including the petitioner were impleaded as legal representatives and they prosecuted the appeal and on dismissal of the appeal 4 C.M.A.No.765/2010 in R.P.No.889/2010 in S.A.No.195/1994 S.A.No.195/1994 was preferred before this Court. The appeal was prosecuted by brother James, appellant No.4 in the second appeal on behalf of legal representatives. Some dispute arose between the petitioner and brother James and mother supported James and the relationship in the family got strained. While so, James died on 31/07/2005 and the second appeal was dismissed on 06.03.2008. Death of at least three parties was not reported to the court. The counsel in the second appeal, who was being instructed by James has not informed about the dismissal of second appeal to the petitioner and he was not aware of the disposal of second appeal. Recently, only when the opposite party proclaimed in the locality that the second appeal has been dismissed, the petitioner made enquiries and thereby came to know about the disposal of the appeal. Hence the petition. 2. Counter affidavit has been filed by the 4[th] respondent for and on behalf of the first respondent contending that the petition has been filed raising incorrect and untrue allegations. The petitioner along with other appellants, were prosecuting the 5 C.M.A.No.765/2010 in R.P.No.889/2010 in S.A.No.195/1994 first appeal. The allegation that the appeal was being prosecuted by the brother and only when the neighbour proclaimed in the locality about the dismissal of the appeal the petitioner came to know about the disposal of the appeal, is denied. The petitioner was aware of the filing of the second appeal and he does not have any dispute with the counsel to whom the second appeal has been entrusted. 5[th] respondent Joseph passed away on 05.07.2012. 6[th] respondent Carmali passed away on 22.09.2011, both after the filing of review petition. Respondent have no occasion to know about the filing of review petition. Fully knowing the correct address of the respondents, incorrect addresses were furnished and hence notice could not be served on the respondents. After obtaining interim order of stay from this Court, petitioner did not take any action to serve notice upon the respondents in correct addresses. Respondents came to know about the pendency of the review petition in October, 2021 when they approached the village office to pay land tax and to obtain some certificates and thereafter they entered appearance 6 C.M.A.No.765/2010 in R.P.No.889/2010 in S.A.No.195/1994 on 18.10.2021. The petitioner approached the court with unclean hands. The address of the first respondent is wrongly shown in the review petition. It is not disclosed as to the neighbour who proclaimed about the dismissal of the second appeal in the petition. So, the petition has been filed without any bonafides and hence there is no sufficient reason for condoning the delay. 3. The learned counsel for the petitioner would content that three persons died pending the second appeal ie. 4[th] appellant, 1[st] respondent as well as 8[th] respondent. But appeal was disposed of without impleading their legal heirs. It is also contended that appeal was prosecuted by brother James and he died and petitioner was not informed about the disposal of the appeal. It is also contended that the judgment passed in the RSA is illegal, unsustainable and liable to be set aside. 4. The learned counsel for the respondent on the other hand would contend that it is the appellant's duty to implead the legal heirs in time and the fact that legal heirs of 4[th] appellant, 1[st] C.M.A.No.765/2010 in R.P.No.889/2010 in S.A.No.195/1994 7 respondent and 8[th] respondent were not impleaded, is not at all a reason to set aside the judgment in SA which was passed on merit. 5. In this context, the learned counsel for the respondent bring to my attention **Jacob v. Vironi [2007 (4) KLT 641 : 2007 (4) KHC 249]** in that case “a learned Single Judge of this Court examined the effect of non impleadment of legal representatives before the lower appellate court while passing the judgment and second appeal filed by the appellants challenging the judgment on merit passed by the 1[st] appellate court. In that context it has been held that an appellant who failed to file application for impleading the legal representatives of deceased respondents cannot successfully challenge dismissal of his appeal on merits in filing a second appeal. It is also held that the judgment and decree of lower appellate court cannot be set aside on account of his own fault.” 6. In this case according to the learned counsel, 4[th] appellant, 1[st] respondent and 8[th] respondent died during the 8 C.M.A.No.765/2010 in R.P.No.889/2010 in S.A.No.195/1994 pendency of the second appeal and appeal disposed of without impleading their legal heirs. So the dictum laid down in the above cited decision would squarely applies in the present case. This is a case in which S.A.No.195/1994 has been dismissed by a learned Single Judge on merits and it is the duty of the appellant to implead the legal heirs of 4[th] appellant as well as that of the respondents 1 and 8 and he cannot take advantage of his own fault for getting the judgment set aside which is passed on merits. If at all, the application would have been filed, for review by the legal heirs of the respondents the matters would have been different. So the fact that the judgment in S.A was passed without impleading the legal heirs of 4[th] appellant, 1[st] respondent and 8[th] respondent will not enable the revision petitioner/appellant to seek for setting aside the judgment passed. 7. The reason stated in the supporting affidavit for causing the delay is that the appeal was being prosecuted by his brother James ie. the appellant No.4 on behalf of legal 9 C.M.A.No.765/2010 in R.P.No.889/2010 in S.A.No.195/1994 representatives of deceased Devassy the father, who filed O.S. No.273/1979. His contention is that during the pendency of this appeal certain disputes arose between him and the 4[th] appellant and mother supported the brother and the relationship strained and while so the 4[th] appellant died on 31.7.2005 and second appeal was dismissed on 06.3.2008. The counsel in second appeal who was being instructed by 4[th] appellant did not inform him of the disposal of the second appeal, hence he was not aware of the disposal of the second appeal. So only when the opposite party recently proclaimed in the locality about the dismissal of the appeal on enquiry he came to know about the dismissal of the appeal. How far the reason so alleged would constitute a sufficient cause is a matter to be decided based on the settled position of law. 8. In this context it is relevant to quote **Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy : 2013 (4) KLT Suppl. 59 (SC)** wherein a two Judge Bench of the Apex Court discussed about the approach to C.M.A.No.765/2010 in R.P.No.889/2010 in S.A.No.195/1994 10 be made by courts while dealing with application for condonation of delay under Section 5 of the Limitation Act, 1963. Paragraph No.13 of the said decision is relevant to be quoted. _“13. Recently in Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai[19], the learned Judges referred to the pronouncement in Vedabai v. Shantaram Baburao Patil [20] wherein it has been opined that a distinction must be made between a case where the delay is inordinate and a case where the delay is of few days and whereas in the former case the consideration of prejudice to the other side will be a relevant factor, in the latter case no such consideration arises. Thereafter, the two-Judge Bench ruled thus: -_ _“23. What needs to be emphasized is that even though a liberal and justice-oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost._ _24. What colour the expression “sufficient cause” would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the_ C.M.A.No.765/2010 in R.P.No.889/2010 in S.A.No.195/1994 11 _court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay.” Eventually, the Bench upon perusal of the application for condonation of delay and the affidavit on record came to hold that certain necessary facts were conspicuously silent and, accordingly, reversed the decision of the High Court which had condoned the delay of more than seven years."_ From the above, it can be concluded that there is a distinction between cases where delay is inordinate and cases where delay is of few days and in the former case, the consideration of prejudice to the other side is a relevant factor and if the delay is of the few days, the question of prejudice is not of much relevance. Bonafide nature of the explanation is also relevant factor to be considered while evaluating the sufficiency of the cause. 9. In **Basawaraj v. Special Land Acquisition Officer :** C.M.A.No.765/2010 in R.P.No.889/2010 in S.A.No.195/1994 12 **2013 (3) KLT Online 1108 (SC)** the meaning of the word 'sufficient cause' under Section 5 of the Limitation Act, 1963 has been dealt with in detail and paragraph No.9 of the said decision is relevant in this context to be extracted which reads thus: _“9.Sufficient cause is the cause for which defendant could not be blamed for his absence. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently" or "remained inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the_ C.M.A.No.765/2010 in R.P.No.889/2010 in S.A.No.195/1994 13 _Court that he was prevented by any “sufficient cause” from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose. (See: Manindra Land and Manndra Lnd and Building Corporation Ltd. v. Bhootnath Banerjee & Ors., AIR 1964 SC 1336; Lala Matadn v. A. Narayanan, AIR 1970 SC 1953; Parimal v.Veena @ Bharti AIR 2011 SC 1150; and Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai AIR 2012 SC 1629.)_ 10. In **University of Delhi v. Union of India and Others [2020 (13) SCC 745]** it has been held that “sufficient cause” should be indicated to justify the delay and though every days delay need not be explained, reasonable and acceptable explanation is very much necessary and accrued right to opposite party cannot be dealt with lightly. 11. In the present case, the reason alleged is that his brother the 4[th] appellant was prosecuting the litigation and subsequently their relationship strained and thereafter the said 14 C.M.A.No.765/2010 in R.P.No.889/2010 in S.A.No.195/1994 brother died and the counsel who was conducting the second appeal did not intimate him about the disposal of the second appeal. Hence, he was not aware of the disposal of the second appeal. 12. **B. Madhuri Goud v. B Damodar Reddy [2012 (12) SCC 693]** was a case in which “a petition filed under Section 5 of the Limitation Act to condone the delay of 1236 days in filing the appeal against the ex-parte order and the reason alleged was that the documents were misplaced by his counsel whose name neither disclose nor was the counsel's affidavit filed. Since the respondents also did not make any effort to ascertain the fate of appeal which was supposed to have been filed for four years prior to date when it was filed and application for condonation of delay was held to be not substantiated by affidavit of advocate concerned, it was held that explanation of delay was not credible or vague to the court. In the said circumstances, it was held that High Court erred in entertaining fanciful explanation for delay and the order passed by the High 15 C.M.A.No.765/2010 in R.P.No.889/2010 in S.A.No.195/1994 Court was set aside.” 13. As has been held in the above decision an affidavit of the concerned advocate stating the facts at least could not be procured by the petitioner. There is also nothing in evidence to show that the relationship between himself and 4[th] appellant strained or that the 4[th] appellant was prosecuting the appeal and hence he was not informed about the disposal of the appeal. There is a delay of 680 days in filing the review petition. Even though, each days delay is not to be explained at least there should be some justifiable reasons or bonafides in the reasons alleged. Even in the affidavit he did not disclose as to when exactly the opposite party proclaimed in the locality about the dismissal of the appeal and though he alleged that subsequently he enquired about the disposal with the counsel and the counsel informed that the communication has been send in the address available in the office, the date on which that enquiry was made is not disclosed in the affidavit. So the reasons offered by the petitioners could not be substantiated and will not amount to 16 C.M.A.No.765/2010 in R.P.No.889/2010 in S.A.No.195/1994 'sufficient cause' as per the settled principles referred above. 14. The learned counsel would contend about the merits of the matter and according to him the learned Single Judge while disposing the second appeal went wrong in deciding that Kudikidappukaran cannot make a claim under Section 79A of the Act in respect of any extent in excess of the extent prescribed under Section 80A(3) of the Act. It is also contended that the purchase of Kudikidappu is not a precondition for the continued enjoyment of the rights conferred by Section 79A of the Act. 15. In this context, learned counsel for the respondent would content that under the garb of filing a review petition a party cannot be permitted to repeat old and over ruled arguments or reopening the conclusions arrived at the in judgments. He would rely on **Vijay Kumar and Another v. Travancore Devaswom Board-TDB represented by Principle Secretary Department of Devaswom and Others [2022 6 KHC 407: 2022 KHC Online 780]** and **Balakrishnana Nair T.K. v. Thalanur Thodukayil** C.M.A.No.765/2010 in R.P.No.889/2010 in S.A.No.195/1994 17 ## **Aboobacker and Others [2017 1 KHC 20: 2017 (1) KLT SN** **94 : 2017 (2) KLJ 195]** wherein it has been held that to invoke review jurisdiction, on a glance on the records should reveal the error or mistake and perpetuating the same will lead to failure of justice. 16. It has been concurrently found by the two courts that appellant/petitioner could not establish that all B schedule structures were being enjoyed by him and it has been accrued to him by custom usage or agreement and that he was enjoying it immediately before the commencement of the Act. So at any rate, I do not find any justifiable reason to condone the long delay of 680 days in filing the review petition. Hence, petition is found to be devoid of any merit and hence dismissed. ## **R.P.No.889/2010** C.M.Application No.765/2010 for condonation of delay is dismissed, consequently, R.P. also dismissed. No cost. Sd/- ## **M.R.ANITHA, JUDGE** jsr/SMF