Haridas v. Binoj Mathew

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 17[TH] DAY OF OCTOBER 2022 / 25TH ASWINA, 1944** ## **RSA NO. 273 OF 2020** **AGAINST THE JUDGMENT AND DECREE DATED 23.07.2018 IN AS 51/2017 OF SUB COURT, PALA AND JUDGMENT AND DECREE DATED 30.11.2016 IN OS 151/2013 OF MUNSIFF COURT, PALA** ## **APPELLANT/DEFENDANT:** HARIDAS AGED 49 YEARS S/O. KRISHNAN, THAZHATHU CHIRACKAL HOUSE, PIRAYAR KARA, KIDANGOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. BY ADVS. A.C.DEVY SRI.A.M.ABDULLA SRI.K.R.RAMISH SRI.P.M.KURIAN ## **RESPONDENT/PLAINTIFF:** BINOJ MATHEW AGED 41 YEARS, S/O. MATHAI, PULIKAPPARAMBIL HOUSE, KANJIRATHANAM P O, OMALLOR KARA, KOTHANALLOOR VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT, PIN-686603. BY ADV LIJI.J.VADAKEDOM THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07.10.2022, THE COURT ON 17.10.2022 DELIVERED THE FOLLOWING: R.S.A.No.273/2020 2 **M.R.ANITHA, J** ****************** R.S.A.No.273 of 2020 ---------------------------------------------------------Dated this the 17[th] day of October, 2022 ## **JUDGMENT** This appeal has been directed against the judgment and decree in A.S.No.51/2017 on the file of Subordinate Judge's Court, Pala which in turn arise out of the judgment and decree in O.S.No.151/2013 on the file of Munsiff's Court, Pala. 2. Suit was one for return of advance money. Appellant is the defendant. (Parties would hereinafter be referred as per their status before the trial court). On 26.06.2013, defendant agreed to sell the plaint schedule property to the plaintiff for a consideration of Rs.23,00,000/-. On the date of agreement, he received Rs.2,50,000/- towards advance from the plaintiff. The defendant agreed to show the original title deeds on or before 30.06.2013. But, on that day, though the plaintiff approached R.S.A.No.273/2020 3 the defendant he could not show the original documents. On subsequent enquiries by the plaintiff it was informed that the defendant obtained a loan of Rs.10,00,000/- from Kidangoor Service Co-operative Bank on executing a 'Gahan'. Subsequently, defendant agreed to return an advance amount of Rs.2,50,000/along with compensation of Rs.25,000/- on or before 05.07.2013. But the defendant did not pay the amount as agreed. Hence the suit. 3. Defendant filed written statement denying the very execution of the agreement. According to him, he purchased the property and residential house from one Mr.Jose Sebastian and brokers behind the purchase had some dispute with respect to commission payable to them. They demanded Rs.75,000/- but the defendant paid only Rs.50,000/-. So, the brokers conspired with the plaintiff and fabricated the document. Hence he seeks for dismissal of the suit with compensatory cost. 4. PW1 to PW3 examined. Ext.A1 marked and Ext.A2 marked subject to proof from the side of plaintiff. Defendant got examined himself as DW1 and DW2 was also examined. R.S.A.No.273/2020 4 5. Evaluating the facts and circumstances and evidence adduced, learned Munsiff decreed the suit as prayed for. Learned Munsiff found that Ext.A1 agreement of sale was duly executed by the defendant and since the plaintiff could not prove any special damages due to non-execution of the sale deed, claim for compensation of Rs.25,000/- was refused and hence ultimately plaintiff was allowed to recover Rs.2,50,000/- with interest at the rate of 6%. Against which A.S.No.51/2017 has been filed with I.A.No.771/2017 under Section 5 of the Limitation Act to condone the delay of 265 days in filing the appeal. Learned first appellate Court on an elaborate consideration of the petition to condone the delay found that there is no bona fides on the part of the appellant/petitioner and there is no material to prove that there was sufficient cause which prevented the appellant from filing the appeal in time and accordingly the petition to condone the delay was dismissed and consequently, the appeal was dismissed. Against which the appellant approaches this Court in Regular Second Appeal. R.S.A.No.273/2020 5 6. Notice was issued to the respondent and both sides were heard. 7. According to the learned counsel for the appellant, appeal was dismissed in consequence of dismissal of the petition to condone the delay and hence no judgment on merit has been passed by the first appellate court. According to him, alleged agreement for sale is an unregistered agreement and the appellant denied the very execution of the agreement. He would also contend that the two witnesses who were cited from the side of the plaintiff to prove the execution of the agreement are brokers and there is dispute between the defendant and the brokers in connection with the broker commission while purchasing the schedule property with house by him. So, the brokers at the instance of the plaintiff has forged the document and the suit was filed. It is also his contention that though he disputed the signature it was not sent to the Forensic Science Laboratory for expert opinion and hence according to him an opportunity should be given to him to argue the appeal on merits. R.S.A.No.273/2020 6 8. Learned counsel for the respondent/plaintiff on the other hand would contend that the suit was once decreed ex parte and the defendant/appellant filed petition to set aside the ex parte decree with a petition to condone the delay of 549 days and that was allowed and ex parte decree was set aside and more or less the same reason is now put forward to condone the delay before the first appellate court also. It is also his contention that plaintiff was examined as PW1 and two witnesses were examined as PWs 2 and 3 and the evidence adduced by them would prove the execution of the agreement for sale by the defendant. He would also contend that Ext.A2 is an advertisement at the instance of the defendant in connection with the sale of the property which also would substantiate that he had an intention to sell the property. So, learned counsel for the plaintiff would contend that there is no reason whatsoever to interfere with the order passed by the first appellate court. 9. It is relevant in this context to quote **Mohd. Sahid vs Raziya Khanam (Died) through Lrs and Another : AIR 2018 SC 4724** . That was a case in which an appeal was filed to set R.S.A.No.273/2020 7 aside an ex parte order with a petition to condone the delay of 349 days. Taking note of the fact that appellant did not file written statement inspite of giving ample opportunities, it was found that appellant had knowledge about the judgment and decree in the original suit and filed the application with incorrect averments that they got knowledge about the judgment and decree only on a later date. In the said circumstances, it was held that filing application to condone the delay on incorrect facts is a ground to refuse condonation of delay. 10. In the present case, the reason stated before the first appellate court for condonation of delay is that he had gone to Coimbatore for helping the business and had no communication with the counsel and he was unaware of the pronouncement of judgment and decree and the counsel has not informed him about it. It is also alleged that in the meantime he shifted residence from Kidangoor to Cherpukal and subsequently on receiving notice in execution proceedings on 26.08.2017 he came to know about the decree and judgment. Hence he engaged another counsel. Thereafter he approached the earlier counsel to R.S.A.No.273/2020 8 take back the file and on the next day the court closed for Onam vacation and the case file was received on 15.09.2017 and hence the delay of 265 days has been caused in filing the appeal. 11. Respondent/plaintiff stoutly denied the averments in the petition and it is also contended that previously an ex parte decree was passed and the appellant/defendant filed petition to set aside the ex parte decree with a petition to condone the delay of 549 days and hence it has been contended that the present petition has been filed only to cause obstruction to the execution of the decree. It is also contended that the allegation against the previous counsel has to be proved by the defendant. Defendant was examined as PW1. Learned first appellate Court on evaluating his evidence found that though he deposed during cross-examination that he had been doing business for the last 15 years and has no other avocation, while giving evidence in the original suit, he admitted that he is agriculturist and social worker and he is residing for the last three years at Palayam and before that he was residing at Cherpukal. So, the averments in the affidavit that he shifted his residence from Kidangoor to R.S.A.No.273/2020 9 Cherpukal during the time when the decree was passed and hence he did not receive the communication from the counsel was found to be false. It is also found that no material was produced by him to prove that he went to Coimbatore in connection with the business. So, learned first Appellate Court found that it is quite unbelievable that he was unaware of the judgment and decree till receipt of notice of execution petition. 12. In **Kerala State Electricity Board v. Precot Meridian : Manu/KE/1769/2016** while dealing with Section 5 of the Limitation Act it has been held by this Court that a party who seeks condonation of delay should set out reasons in the application and bona fides of the party is a relevant criterion for condoning the delay. 13. It is also relevant to quote the decision in R.S.A.No.389/2011 dated 31.3.2011 wherein His Lordship Justice M.Sasidharan Nambiar while dealing with an identical situation of dismissal of first appeal consequent to the dismissal of application under Section 5 of the Limitation Act to condone the delay of 826 days in filing the appeal, it has been held that even R.S.A.No.273/2020 10 though a second appeal will lie against the dismissal of first appeal of dismissing the application to condone the delay in filing the first appeal as it is a decree, the scope of such appeal is limited. The appellants in such appeal can canvass only the correctness of the dismissal of the application for condonation of delay and not on the merits of the judgment of the trial court. 14. This is a case in which on a previous occasion decree was passed ex parte and the defendant filed petition to set aside the ex parte decree along with a petition to condone the delay of 549 days and that was allowed. So, if the present petition is allowed, great prejudice would be caused to the plaintiff. It has also been found that the appellant/defendant failed to offer sufficient cause for condoning the delay and accordingly the petition to condone the delay was dismissed and consequently the appeal was also dismissed. 15. So, the reasoning of the learned first appellate court in dismissing the petition to condone the delay is in consonance with the settled principles of law. It has come out that the averments in the affidavit in support of the petition to condone R.S.A.No.273/2020 11 the delay is incorrect and defendant also could not substantiate the allegations. Accordingly, the first appellate court found that there is no sufficient cause to condone the delay. I do not find any substantial question of law emerging for consideration of this second appeal. Hence appeal is found to be devoid of any merit and hence dismissed. In the facts and circumstances, there is no order as to costs. (sd/-) **M.R.ANITHA, JUDGE** jsr True Copy P.S to Judge