Johnson, George, and Sherji Thimas v. Sanjay Mithra, Sumithra Mithra and Ganesan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 2[ND] DAY OF DECEMBER 2021 / 11TH AGRAHAYANA, 1943** ## **RSA NO. 1037 OF 2015** **AGAINST THE ORDER/JUDGMENT IN AS 132/2014 OF SUB COURT, PALA** **OS 132/2003 OF MUNSIFF MAGISTRATE, ERATTUPETTA** ## **APPELLANTS/APPELLANTS/PLAINTIFFS:** 1 JOHNSON, S/O.MATHAI, PUTHANAPARAKUNNEL, THIDANADU KARA, POONJAR, VADAKKEKARA VILLAGE, TEEKOY.P.O.,PIN-686 580. 2 GEORGE, S/O.VARKEY, POOVATHINAL, THIDANADU KARA, KONDOOR VILLAGE, CHEMMALAMATTOM.P.O., PIN-686 529. 3 SHERJI THIMAS, S/O.THOMAS, PURAPPANTHANATHU, TEEKOY KARA, TEEKOY VILLAGE, TEEKOY P.O., PIN-686 580. BY ADV SRI.B.JAYASANKAR ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** 1 SANJAY MITHRA, S/O.NIRADU BARAN MITHRA, SOCIAL WORKER, RESIDING AT P- 64, KALINDI HOUSING ESTATE.P.O., LAKE TOWN, WEST BENGAL, KOLKATTA, PIN-700 089. 2 SUMITHRA MITHRA, W/O.SANJAY MITHRA, RESIDING AT P-64, KALINDI HOUSING ESTATE.P.O., LAKE TOWN, WEST BENGAL, KOLKATTA, PIN-700 089. 3 GANESAN, ASHA SADAN, ASHAKENDRA VEEDU, VAZHIKADAVU, MEENACHIL TALUK, VAGAMON.P.O., KOTTAYAM DISTRICT. PIN-685 503. BY ADVS. SRI.ARUN MATHEW VADAKKAN -FOR R1 SRI.SANTHEEP ANKARATH-FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.S.A No.1037 of 2015 2 K.BABU, J . -------------------------------------R.S.A No.1037 of 2015 --------------------------------------Dated this the 2[nd] day of December, 2021 ## JUDGMENT The plaintiffs in O.S.No.132/2003 on the file of the Munsiff’s Court, Erattupetta are the appellants. Respondents are the defendants. 2. The appellants instituted O.S.No.132/2003 before the Trial Court seeking a prohibitory injunction in respect of the plaint schedule property against the defendants. Defendant Nos.1 and 2 filed O.S.No.87/2002, a suit for declaration of title and consequential injunction against the predecessors in interest of the plaintiffs. In O.S.No.132/2003, the defendants filed a counterclaim. Both the suits were tried together. The suits as well as the counterclaim were dismissed by the Trial Court by way of a common judgment. 3. Aggrieved by the judgment dismissing O.S.No.87/2002 and the counterclaim in O.S.No.132/2003, the respondents filed A.S.Nos.25/2008 and 24/2008 respectively before the Subordinate Judge's Court, Pala. The appellants filed a cross objection in R.S.A No.1037 of 2015 3 A.S.No.24/2008. A.S.Nos.24/2008 and 25/2008 were allowed remanding the matter to the Trial Court for disposal afresh. The learned Sub Judge did not pass any orders in the Cross- objection. 4. The appellants filed F.A.O.Nos.372/2011 and 373/2011 challenging the order remanding A.S.Nos.24/2008 and 25/2008 before this Court. By way of the judgment dated 02.09.2013, this Court remanded the matter to the First Appellate Court to consider the matter afresh. The First Appellate Court was also directed to decide on the maintainability and sustainability of the Crossobjection filed by the appellants (respondents 1 to 3 in A.S.No.24/2008). 5. The appellants did not prosecute the Cross-objection. Instead, they preferred A.S.No.132/2014 challenging the decree and judgment in O.S.No.132/2003 along with an application (I.A.No.1382/2014) to condone the delay of 2546 days in filing the appeal. 6. The First Appellate Court dismissed I.A.No.1382/2014 in A.S.No.132/2014 as per order dated 01.08.2015. Consequently, the appeal was also dismissed as per judgment dated 01.08.2015. R.S.A No.1037 of 2015 4 7. The appellants have come up before this Court under Sec.100 of the C.P.C challenging the judgment dismissing A.S.No.132/2014 on the ground that the appeal is time-barred in view of the dismissal of I.A.No.1382/2014. 8. This Court admitted the appeal on 22.09.2015 on the following substantial questions of law: - (i) Whether the learned Sub Judge in considering the application for condoning the delay in filing the appeal is justified in denying the benefit of Sec.14 of the Limitation Act to the appellants and eschewing the prime consideration as to whether the appellant had shown sufficient cause or rather explained the delay to condone the delay. - (ii) Does the direction contained in the remand order preclude the appellant in exercising their statutory right to file an appeal on explaining the delay? 9. Heard Sri.Jayasankar.B, the learned counsel appearing for the appellants and Sri.Santheep Ankarath, the learned counsel for the respondents. 10. The learned counsel for the appellants contended that the appellants had established sufficient cause for condoning the delay in preferring the appeal. 11. Per contra, the learned counsel for the respondents contended that no substantial questions of law arise in this regular second appeal. R.S.A No.1037 of 2015 5 12. When the appeal was taken up for hearing, it is submitted from both sides that, an effectual adjudication of lis requires consideration of the subject matter along with the two appeals now pending before the First Appellate Court for which a remand of the matter is required. 13. The learned counsel for the appellants further submitted that this is not a case where the appellants have slept over the rights to file an appeal and approached the Court after a long lapse of time. Aggrieved by the dismissal of O.S.No.132/2003 the appellants had instructed their counsel in the Court below to prefer an appeal against the judgment dismissing the suit. However, inadvertently or rather on a mistaken notion, a cross-objection was filed in the appeal preferred by the respondents. 14. The learned counsel for the appellants further submitted that the appellants could establish sufficient cause to condone the delay in filing the appeal. The learned counsel argued that a liberal approach in condoning the delay is one of the guiding principles. The learned counsel further contended that there was no negligence on the part of the appellants. R.S.A No.1037 of 2015 6 15. It is well settled that the Law of Limitation is founded on public policy to ensure that the parties to a litigation do not resort to dilatory tactics and seek legal remedy without delay. In an application filed under Section 5 of the Limitation Act, the court has to condone the delay if sufficient cause is shown. Adopting a liberal approach in condoning the delay is one of the guiding principles, but such a liberal approach cannot be equated with a licence to approach the court-at-will disregarding the time limit fixed by the relevant statute. The acts of negligence or inaction on the part of a litigant do not constitute sufficient cause for condonation of delay. Therefore, in the matter of condonation of delay, sufficient cause is required to be shown, thereby explaining the sequence of events and the circumstances that led to the delay. 16. In Collector, Land Acquisition Anantnag and another v. Mst.Katiji and others [(1987) 2 SCC 107 : AIR 1987 SC 1353] , in the context of Section 5 of the Limitation Act, 1963, a Two-Judge Bench of the Apex Court held that the expression 'sufficient cause' employed by the Legislature is adequately elastic to enable the courts to apply the law in a meaningful manner, which subserves R.S.A No.1037 of 2015 7 the ends of justice, that being the life-purpose for the existence of the institution of courts. 17. In Sarojini Amma v. Gopalan [2016 (4) KLT SN 77 (C.No.91)] this Court held that the court must be liberal in considering the application to condone the delay and also to set aside the ex-parte decree passed. It must always keep in mind that substantial justice must be done and the justice should not be denied on technical grounds and while considering the words 'sufficient cause', pragmatic approach must be taken by the court and if it is taken in the restricted sense, substantial justice will suffer. This Court observed that as far as possible, an opportunity must be given to the parties to meet their case on merit and the justice should not suffer on technical ground of limitation or strict approach of the words used in the statute should not be taken which was not intended by the legislature itself. This Court further stated that it is not necessary that the reason stated must be proved beyond reasonable doubt and what is required is to consider whether the reason stated is convincing and appeals to the mind of the prudent man and nothing more. R.S.A No.1037 of 2015 8 18. In Kunjamma v. Chellappan [2004 (3) KLT SN 78 (C.No.108)] , this Court held that when interests of technicalities and those of substantial justice are pitted against each other, the Court shall strive to advance those of substantial justice rather than technicalities. 19. This Court has carefully gone through the materials placed and finds that the appellants could establish sufficient cause for condoning the delay in filing A.S.No.132/2014 before the First Appellate Court. 20. Having considered the submissions on both sides and in view of the circumstances that two other appeals in respect of the property involved are pending before the First Appellate Court, this Court feels that the impugned judgment dismissing A.S.No.132/2014 and the order dismissing I.A.No.1382/2014 in A.S.No.132/2014 are to be set aside and the matter is to be remitted to the First Appellate Court for disposal along with A.S.Nos.24 and 25 of 2008. Resultantly, the Regular Second Appeal stands allowed. The judgment dated 01.08.2015 in A.S.No.132/2014 and the order in I.A.No.1382/2014 in A.S.No.132/2014 are set aside. I.A.No.1382/2014 R.S.A No.1037 of 2015 9 is allowed. Delay of 2546 days in preferring A.S.No.132/2014 is condoned. A.S.No.132/2014 is restored to file. The First Appellate Court is directed to consider the matter afresh and dispose of A.S.No.132/2014 along with A.S.Nos.24 and 25 of 2008, as expeditiously as possible, at any rate, before the Court closes for summer vacation in 2022. The parties are directed to bear their respective costs. They are directed to appear before the Court on 15.02.2022. Sd/K.BABU, JUDGE KAS