Iswariya v. D.M. Prasad and Grace, Celine Lal, Sherly Sebastian, Reji Rajan Hitha Bhavan (RSA No. 63 of 2021)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA TUESDAY, THE 12[TH] DAY OF JULY 2022 / 21ST ASHADHA, 1944 RSA NO. 63 OF 2021** **AGAINST THE JUDGMENT AND DECREE DATED 30.08.2019 IN AS 362/2016 OF II ADDITIONAL DISTRICT COURT,TRIVANDRUM DISMISSING THE APPEAL WITHOUT CONDONING DELAY FILED AGAINST THE JUDGMENT AND DECREE OF THE 3RD ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM DATED 28.01.2015 IN** **I.A.NO.5737/2007 IN OS 2072/1996** ## **APPELLANT/APPELLANT/ADDL.3RD RESPONDENT (LEGAL HEIR OF THE PLAINTIFF):** ISWARIYA AGED 42 YEARS D/O.LATE JOSE, RESIDING AT KADAYIL VEEDU, KAROORKONAM, PEROORKADA VILLAGE, THIRUVANANTHAPURAM BY ADV LATHEESH SEBASTIAN ## **RESPONDENTS/PETITIONERS AND RESPONDENTS (LEGAL HEIR OF DECEASED 2ND RESPONDENT):** 1 D.M.PRASAD S/O.LATE MOSSES, KADAYIL VEEDU, KAROORKONAM, PEROORKADA VILLAGE, THIRUVANANTHAPURAM, NOW RESIDING AT JYOTHIS, V.P. 10/270, MULLANCHANI, KODUNGANOOR P.O., THIRUVANANTHAPURAM 695 013 2 GRACE D/O.LATE MOSSES, AGED 77YEARS, GRACE BHAVAN, NEAT THEATRE, THIRUVALLAM P.O., PANCHALLOOR, THIRUVANANTHAPURAM, NOW RESIDING AT KNRA-3, OPP. CHATHAN KOVIL, AKG NAGAR, PEROORKADA, THIRUVANANTHAPURAM 695 005 C.M.Appl.No.01/2021 2 & R.S.A.No.63/2021 3 CELINE LAL W/O.LALY RAJENDRA PRASAD, CELINE NIVAS, BEHIND SURVETY SCHOOL, AMBALAMMUKKU, THIRUVANANTHAPURAM 695 005 4 SHERLY SEBASTIAN W/O.SEBASTIAN, ASWATHY, MYTHRIPURAM, BEHIND F.M.STATION, NGO QUARTERS JUNCTION, THRIKKAKARA, ERNAKULAM 682030 5 REJI RAJAN HITHA BHAVAN, MYTHRIPURAM, BEHIND F.M.STATION, NGO QUARTERS JUNCTION, THRIKKAKARA, ERNAKULAM 682030 BY ADVS. SMT.M.B.SHYNI SRI.JOHN K.GEORGE SRI.M.K.ROBIN RAJ THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05.07.2022, THE COURT ON 12.07.2022 DELIVERED THE FOLLOWING: C.M.Appl.No.01/2021 & R.S.A.No.63/2021 3 ## **M.R.ANITHA, J** ****************** C.M.Appl.No.01 of 2021 in R.S.A.No.63 of 2021 & R.S.A.No.63 of 2021 --------------------------------------------------Dated this the 12[th] day of July, 2022 ## **O R D E R & J U D G M E N T** This petition is filed under Section 5 of the Limitation Act to condone the delay of 352 days in filing the Regular Second Appeal. 2. This appeal has been filed against the decree and judgment in A.S.No.362/2016 dated 30.08.2019 on the file of Additional District Court No.II, Thiruvananthapuram. By the impugned judgment, the court below dismissed the appeal by dismissing the petition to condone the delay caused in filing the appeal. 3. The impugned judgment was passed on 30.08.2019. Copy of the judgment was applied for on 31.08.2019. Stamp paper was called on 18.09.2019 and it was produced on 4 C.M.Appl.No.01/2021 & R.S.A.No.63/2021 20.09.2019. Copy was ready on 20.09.2019 and the date informed to receive copy was on 25.09.2019. Copy was delivered on 25.09.2019. Since the reason for dismissal of the appeal is stated as non-condonation of delay, petitioner applied for certified copy of the order of the court in the delay condonation petition on 30.10.2019 and that order was received on 05.11.2019. Thereafter, he was not having sufficient money to file appeal and find out a counsel. So, the appeal was filed on 11.12.2020 and there is a delay of 352 days in filing the appeal. He made arrangements for filing the appeal by collecting records. But, at that time, due to spread of Covid-19 pandemic and traffic restrictions, delay has been caused in entrusting the bundle to the learned counsel at Ernakulam. So, according to him, there is no wilful laches on his part in filing the appeal. Hence the petition. 4. 1[st] respondent in the appeal filed counter affidavit contending that the original suit for partition was filed in 1996 and the decree was passed in the year 1999. Even after 26 years, the decree holders are not able to enjoy the fruits of the decree. 5 C.M.Appl.No.01/2021 & R.S.A.No.63/2021 Though the original legal heirs at the time of filing the suit were 5, four of them died and this respondent is the only person alive and she is also 76 years old. 5. Petitioner filed A.S.No.326/2016 before the District Court with a petition to condone the delay of 495 days. The present delay caused is 352 days. Hence the delay is deliberate and wilful and there is no justifiable reason to condone the delay. There is no reason for explaining the long delay occurred in filing the Second Appeal. It has been filed only to deny the benefits of the decree to this respondent. Appeal has been filed to harass the respondent. Preliminary decree had already attained finality after being confirmed by the High Court. After passing the preliminary decree, the original second defendant passed away. In terms of preliminary decree, the 1[st] defendant/respondent filed a final decree application which was allowed based on undisputed commission report. Property was divided into four equal shares by metes and bounds. There is no challenge before the appellate court regarding the said division of property. Hence he prayed for 6 C.M.Appl.No.01/2021 & R.S.A.No.63/2021 dismissal of the petition. 6. Heard both sides. 7. Even though petition was filed seeking to condone the delay of 352 days, it is admitted by both sides that due to exclusion of period of limitation by the order of the Hon'ble Supreme Court in Misc. Appln.No.21/2022 in Misc. Appln. No.665/2021 in Suo Motu Petition No.03/2020 dated 10.01.2022, the actual period of delay is 72 days. According to the learned counsel for the petitioner, he applied for certified copy of the judgment on the immediate next day of pronouncement of the judgment and the copy was delivered only on 25.09.2019. Since the reason for dismissal of the appeal was dismissal of condonation of delay petition, he applied for certified copy of that order but it was received on 05.11.2019. So, according to him, time between 25.09.2019 and 05.11.2019 was due to the nonreceipt of the order in delay condonation petition. He would also allege that he was not having sufficient fund to file the appeal and find out a counsel. C.M.Appl.No.01/2021 7 & R.S.A.No.63/2021 8. The learned counsel for the respondent would vehemently objects in considering the petition for the reason that the original suit for partition was filed in the year 1996 and decree was passed in the year 1999 and even after 26 years, the decree holders are not able to enjoy the fruits of the decree. He would also contend that when the suit was filed the original legal heirs were five and out of it only one remains and the first respondent who sworn in the counter affidavit is now 76 years. It is also his contention that after passing the preliminary decree, the original 2[nd] defendant Lilly passed away. In terms of preliminary decree, the 1[st] defendant/respondent filed a final decree application which was allowed based on undisputed commission report. The property was divided into four equal shares and there was no challenge regarding the said division of property. It is also his contention that when the petitioner filed A.S.No.326/2016 before the District Court it was filed with a petition to condone the delay of 495 days. So, according to him, there is no reason whatsoever to condone the delay in the C.M.Appl.No.01/2021 8 & R.S.A.No.63/2021 absence of any sufficient cause offered by the petitioner. 9. The impugned order also would show that during the course of hearing the petition to condone the delay, the petitioner herein filed another I.A.No.2191/2019 along with an unregistered deed of Will-cum-Agreement engrossed in stamp papers. Her contention is that as per that unregistered will, the share allotted to deceased Lily/2[nd] defendant shall be vested with the petitioner/appellant. The first appellate court considered the fact that the Will is dated 06.10.2004 but it was produced before the court only on 18.07.2019 after a lapse of 15 years and there is no pleading in the appeal memorandum or affidavit as to why it was not produced earlier. It is further noted that the age of the testator as well as the attesting witnesses is seen erased. The testator Lilly Sinhai was also a party to the proceedings but the Will was not brought to the notice of the court during her life time. 10. Taking all those factors into account, the appellate court found that there is no reason to condone the delay of 495 C.M.Appl.No.01/2021 9 & R.S.A.No.63/2021 days. In the above background, while analysing the affidavit filed by the petitioner in the present application to condone the delay it is pertinent to note that, according to her, she received copy of the order dismissing the appeal on 25.09.2019. Though the copy of the order dismissing the appeal was received on 25.09.2019, she applied for copy of the order of delay condonation petition only on 30.10.2019. Further, she explains that after receiving the copy of the order in delay condonation petition on 05.11.2019, she was not having money to file appeal before this Court and to find out a counsel and that is why the appeal was filed on 11.12.2020. 11. In **John K.P. v. Mani Varkey : 2014 (4) KHC 36** while dealing with condonation of delay, the learned Single Judge quoted **Naubat Ram Sharma v. Additional District Judge II, Moradabad and Others : 1987 KHC 1198 : AIR 1987 SC 1352** . Paragraphs 14 and 15 of the said judgment is relevant here to quote which read thus: C.M.Appl.No.01/2021 10 & R.S.A.No.63/2021 _"1. Ordinarily a litigant does not stand to benefit by lodging an appeal late._ _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 mala fides. A litigant does not stand to benefit by resorting to delay In fact he runs a serious risk._ _6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on_ C.M.Appl.No.01/2021 11 & R.S.A.No.63/2021 _technical grounds but because it is capable of removing injustice and is expected to do so._ _Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State', which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner."_ _It was held therein that the Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause"._ _15. The learned Senior Counsel has also relied on the decision in State of Nagaland v. Lipok AO and Others MANU/SC/0250/2005 : 2005 KHC 515 : AIR 2005 SC 2191 : 2005 (3) SCC 752 : 2005 SCC (Cri) 906 : 2005 (183) ELT 337 : 2005 (2) KLT 547, wherein it was held in paragraph 12 that:_ _"…..........The expression "sufficient cause" is adequately elastic to enable the Court to apply the law in a meaningful manner which subserves the ends of_ C.M.Appl.No.01/2021 12 & R.S.A.No.63/2021 _justice-that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. This Court reiterated that the expression "every day's delay must be explained" does not mean that a pedantic approach should be made. The doctrine must be applied in a rational common sense pragmatic manner. 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. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. Judiciary is not respected on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal ….........."_ C.M.Appl.No.01/2021 13 & R.S.A.No.63/2021 12. In **Kerala State Electricity Board vs. Precot Meridian : MANU/KE/1769/2016** while dealing with Section 5 of Limitation Act it has been held that in case of condonation of delay party seeking condonation of delay should set out reasons in its application for condoning the delay - bona fides of the party is a relevant criterion for condoning the delay. 13. From the above principles it can be deduced that court should not be reluctant to condone the delay so as to throw out a meritorious matter at the threshold. Courts should prefer substantial justice to thrive where it is pitted against technical considerations and should not allow injustice to survive. 14. In the present case, admittedly there is 72 days delay caused in filing the appeal. Petitioners after receiving the order in appeal, applied for certified copy of the order dismissing the delay condonation petition after about 35 days. Again, after receiving that order also, on 05.11.2019, according to the petitioner, she was not having sufficient funds to file appeal and to find out a counsel. All those factors shows the lack of bona C.M.Appl.No.01/2021 14 & R.S.A.No.63/2021 fides especially in view of the fact that the first appeal against the final decree also has been filed before the first appellate court with a petition to condone the delay of 495 days. Finding that there is no sufficient reason, the learned Additional District Judge dismissed that petition. The petitioner could not offer any sufficient cause for the delay of 72 days caused in filing the present appeal also. Admittedly, the suit is of the year 1996 and preliminary decree was passed in the year 1999. According to the respondent, all the parties to the suit except she is not alive to enjoy the fruits of the decree and she is also 75 years. 15. In the above circumstances, the contention of the learned counsel for the respondent that the present appeal has been filed as a delaying tactics to obstruct the delivery proceedings is only to be upheld and the petition is found to be devoid of any merit and hence dismissed. ## **R.S.A.No.63 of 2021** 16. This appeal has been filed against the judgment in A.S.No.362/2016 on the file of Additional District Court-II, C.M.Appl.No.01/2021 15 & R.S.A.No.63/2021 Thiruvananthapuram arising out of I.A.No.5737/2007 in O.S.No.2072/1996 on the file of III Additional Munsiff's Court, Thiruvananthapuram. 17. The suit was one for partition. Preliminary decree was passed on 11.03.1999 which went upto this Court and was confirmed by this Court. Thereafter final decree application was filed. A Commissioner was duly appointed and Commissioner's report and plan were produced and marked as Exts.C1 and C1(a). No objection was filed to the report of the Commissioner. 18. When the matter came up for hearing, both sides reported to have submitted that final decree can be passed accepting the Commissioner's report and plan. Accordingly, final decree was passed in terms with preliminary decree. Thereafter, an appeal was filed challenging the final decree with a petition to condone the delay of 495 days before the II Additional District Court, Thiruvananthapuram. The learned Additional District Judge dismissed the petition to condone the delay and in the light of the same the appeal was also dismissed. Thereafter, the present C.M.Appl.No.01/2021 16 & R.S.A.No.63/2021 appeal has been filed with a petition to condone the delay of 72 days. Petitioner could not offer any sufficient cause for the delay caused and accordingly the delay petition was dismissed by this Court. Consequently, appeal also dismissed. No cost. (sd/-) **M.R.ANITHA, JUDGE** jsr True Copy P.S to Judge