CRP No. 933 of 2018

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **WEDNESDAY, THE 18TH DAY OF DECEMBER 2019 / 27TH AGRAHAYANA, 1941** ## **CRP.No.933 OF 2018** **AGAINST THE ORDER IN I.A.6297/18 IN AS 187/2018 DATED 24-11-2018 OF DISTRICT & SESSIONS COURT, ERNAKULAM** ## **REVISION PETITIONERS/RESPONDENTS 1 TO 6 IN IA:** - **1 RADHA SASIDHARAN AGED 59 YEARS D/O.LATE JANAKI VELAYUDHAN, KANICHIRAYIL HOUSE, KUREEKADU.P.O., THIRUVAMKULAM (VIA), ERNAKULAM.** - **2 SANTHA HARIDAS, AGED 59 YEARS D/O.LATE JANAKI VELAYUDHAN, MALAYIL HOUSE, KUREEKADU.P.O., THIRUVAMKULAM (VIA), ERNAKULAM.** - **3 M V MOHANAN, AGED 57 YEARS S/O.LATE JANAKI VELAYUDHAN, MALAYIL HOUSE, KUREEKADU.P.O., THIRUVAMKULAM (VIA), ERNAKULAM.** - **4 M V VALSAN, AGED 55 YEARS S/O.LATE JANAKI VELAYUDHAN, MALAYIL HOUSE, KUREEKADU.P.O., THIRUVAMKULAM (VIA), ERNAKULAM.** - **5 M V SOMAN, AGED 52 YEARS S/O.LATE JANAKI VELAYUDHAN, MALAYIL HOUSE, KUREEKADU.P.O., THIRUVAMKULAM (VIA), ERNAKULAM.** - **6 M V SHAJI, AGED 46 YEARS S/O.LATE JANAKI VELAYUDHAN, MALAYIL HOUSE, KUREEKADU.P.O., THIRUVAMKULAM (VIA), ERNAKULAM.** ## **BY ADV. SRI.VARGHESE C.KURIAKOSE** ## **RESPONDENTS/PETITIONER & RESPONDENTS 7 TO 9:** **1 C.A.PURUSHOTHAMAN AGED 66 YEARS S/O.AYYAPPANKUTTY, CHERUVIPARAMBIL HOUSE, KADUNGAMANGALAM-682305.** CRP.933/18 2 - **2 C A KARTHYAYINI, AGED 79, D/O.AYYAPPANKUTTY, CHERUVIPARAMBIL HOUSE, KADUNGAMANGALAM-682305.** - **3 KUNJIPENNU** **AGED 70, W/O.BHASKARAN, ERUVELIKKUNNEL HOUSE, KODANADU.P.O., VIA KOLLAPPALLY, KOTTAYAM - 686236.** - **4 AMMINI,** **AGED 65, D/O.AYYAPPANKUTTY, CHERUVIPARAMBIL HOUSE, KADUNGAMANGALAM-682305.** **R1 BY ADV. SRI.A.BALAGOPALAN R1 BY ADV. SRI.A.RAJAGOPALAN R1 BY ADV. SRI.M.N.MANMADAN R1 BY ADV. SRI.M.S.IMTHIYAZ AHAMMED R1 BY ADV. SMT.P.SEENA** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** CRP.933/18 3 ## **O R D E R** **Dated this the 18th day of December 2019** 1. This revision petition is directed against the order of the District Judge, Ernakulam, dated 24.11.2018 whereby I.A.No.6297/18 in A.S.No.187/18 seeking condonation of delay of 1384 days in preferring the appeal filed by respondents/defendants has been allowed. O.S.No.177/96 for partition of the suit property was filed in the Additional Sub Court, Ernakulam which resulted into preliminary decree of 2001. When the application for preparation of final decree was filed, 1[st] respondent/defendant engaged the service of a lawyer Sri.Subrahmanian, but during the pendency, he suffered cancer thus focused on his treatment. Though the submission of the defendants was that his case has been properly conducted by the counsel, his lawyer died on 9.5.2018. However, during the interregnum final decree dated 30.1.2015 was passed. On acquisition of the acknowledge when the respondents sought to take possession of the property which did not commensurate with the report CRP.933/18 4 of the Commission, particularly plot No.A5 in Ext.C1(a) sketch, preferred an appeal, bearing No.187/18 along with the application seeking condonation of delay. 2. Learned counsel appearing on behalf of the petitioner submits that the suit was filed by Smt.Janaki Velayudhan, mother of the petitioners seeking partition of the property. The suit was decreed on 8.7.1997. 1[st] respondent challenged the aforesaid judgment and decree by preferring A.S.No.50/99. The lower appellate court vide judgment dated 11.4.2001 remitted the matter. On 19.11.2001, the suit, again, was decreed whereby Defendant Nos.3 and 5 were held entitled to get 1/8[th] share in the plaint schedule item Nos.1 and 2 of the properties whereas Defendant Nos.6 and 7 5/8[th] share. Plaintiff was directed to take commission application during the final decree proceedings to effect the partition by metes and bounds. However, no relief for mesne profits was granted. For the purpose of preparation of final decree FDA.8754/10 was preferred. In those proceedings, an Advocate was appointed as the Commissioner. He conducted CRP.933/18 5 a prolonged procedure and ultimately submitted his report which contains inequitable allotment which was objected to by the petitioners. 4[th] petitioner was examined as PW1. However the counsel for the 1[st] respondent abstained from the court, nor any cross examination was subjected. The trial court found substance in the objection raised by the petitioners against the report of the Commissioner and passed the final decree dated 30.1.2015 allotting the property to the petitioners. Steps were taken for execution of the final decree through E.P.13/18. On 26.3.2018, the 1[st] respondent appeared through Adv.Geethakumari, who is none other than the daughter of the previous lawyer who had died of cancer. The proceedings continued upto 24.9.2018 until delivery of the property was ordered. As per the final decree, out of the two items of the property, subject matter of the final decree, revision petitioners were allotted plot No.A5 in Ext.C1(a) plan and plot No.D in Ext.C1(b) plan. He also gave description on various other dimensions. Amin was deputed to effect the delivery and when he visited the plot for effecting was CRP.933/18 6 obstructed by the 1[st] respondent. Thereafter the 1[st] respondent engaged the service of a new counsel and in this process, to prolong the execution of the final decree preferred the appeal with delay of 1384 days, subject to costs of Rs.20,000/-. 3. It was not the case that the counsel was fully bedridden. When the commission was examined counsel concerned was personally present in court but no cross examination was conducted. Even when the delivery was ordered the 1[st] respondent did not take steps to file appeal. Learned District - Judge condoned the delay as serious prejudice has been caused to the petitioner nor any person has been examined to prove the medical record of the deceased advocate. 4. Per contra, learned counsel for the 1[st] respondent supported the impugned order and submitted that the delay was neither intentional nor willful and the reasons mentioned in I.A.No.6297/18 referred to medical record, Ext.R6 placed on record reflecting the ailment of his counsel. 5. I have heard the learned counsel for parties, perused the CRP.933/18 7 materials on record and am of the view that the order under challenge do not call for any interference, cannot be said to be suffering from any irregularity or illegality. No doubt, the preliminary decree was passed in 19.11.2001, 5 years were consumed in drawal of the final decree dated 30.1.2015. It is a matter of record that the petitioners/plaintiffs objected to the report of the commissioner and continued with the cross examination. Though as per the averments in the application for condonation respondent did not object to the report of the commissioner but his absence or for want of cross examination of PWs.1 and 2, final decree is not in tandem with the commission report which seriously prejudiced his right which gave cause to institute the appeal with delay of 1348 days. The law with regard to condonation of delay, when there is no malice or malifide intention, is no longer res integra. In this regard, the following principles laid down in the judgment in **Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and others [(2013)12 SCC 649],** are relevant (para 15 & 16): CRP.933/18 8 “15. From the aforesaid authorities the principles that can broadly be culled out are: (i) There should be a liberal, pragmatic, justiceoriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. (ii) The terms ''sufficient cause'' should be understood in their proper spirit philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. (vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first CRP.933/18 9 one warrants strict approach whereas the second alls for a liberal delineation. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. (xii) The entire gamut of facts are to be carefully scruitinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. 16. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: (a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.” CRP.933/18 10 6. The order of the District Judge, in my view, is clear and just and the petitioners/plaintiffs have been compensated. No doubt, a period of almost 9 years have elapsed after drawing of preliminary decree. Be that as it may, the whole purpose of the litigation that there should be an adjudication on merits instead of pondering on delay. Since the Plaintiff has already been compensated in terms of money, imposing costs of Rs.20,000/-, I am of the view that the costs is on a lesser side and is increased by another Rs.20,000/-, in all Rs.40,000/-. Revision is dismissed with direction to the respondents to pay costs of Rs.20,000/- on appearance before the lower appellate court for adjudication of the appeal on merits. The lower appellate court is directed to decide A.S.No.187/18 within a period of 4 months from the date of receipt of a copy of this judgment. Sd/- AMIT RAWAL Judge kkb.