K. Ramachandran Adiyodi and K. Sulochana v. T. Muhammed

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: M.R. Anitha
Judgment Date: 2022-10-12
Court Decision / Holding: CM Application No. 01/2019 to condone the delay dismissed. Consequently, RSA No. 811/2019 is also dismissed.
Final Disposition: Final disposition: C.M.Appln No. 01 of 2019 dismissed; RSA No. 811/2019 dismissed; no order as to costs.

Parties to the Case

Appellants / Petitioners

K. Ramachandran Adiyodi
K. Sulochana

Respondents

T. Muhammed

Legal Representation & Advocates

Counsels for Petitioners

• Adv. E. Narayanan

Counsels for Respondents

• Sri. V. V. Surendran
• P. A. Harish
• K. Satheesh Kumar

Case Synopsis & Summary

This Regular Second Appeal (RSA No. 811 of 2019) before the Kerala High Court arises from a suit O.S. No. 442 of 2007 and related proceedings, including a compromise decree in O.S. No. 527 of 1978. The appellants, K. Ramachandran Adiyodi and K. Sulochana, contend that they had a share in the property arising out of a compromise, and that certain documents (Nos. 1237/2007 and 1517/1989) through which a sale was alleged are either sham or invalid, casting doubt on the respondent’s title and the validity of the sale. The respondent, T. Muhammed, seeks recovery of an advance sale amount and asserts that the appellants had no saleable interest, with concurrent decrees reflecting that position. The appeal was admitted on 28.09.2022 and disposed of on 12.10.2022, together with C.M. Appln. No. 01 of 2019 seeking to condone a delay of 410 days in filing the appeal. The court examines whether there was a prima facie arguable case and whether the delay has been sufficiently explained, citing precedents that emphasize bona fides and merits in the condonation analysis. Ultimately, the court dismisses the delay petition and the RSA, noting lack of arguable case and delay justification, with no order as to costs.

Legal Doctrines & Maxims

Bona fides of the party as a relevant criterion for condonation of delay.

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicants argued that the 410-day delay in filing the appeal was caused by the advocate’s initial advice against filing, subsequent reconsideration, non-receipt of a copy, and the petitioners’ alleged illness and inability to contact counsel. They contended that a compromise decree and subsequent transactions affected the property, and that there was no saleable interest to justify the respondent’s claim. They emphasized that the delay should be evaluated for bona fides and merits, relying on established precedents to demonstrate sufficient cause in light of the facts and sequence of events.

Contentions of Respondents

The respondents contended that there was laches and that the petitioners failed to provide sufficient cause for the prolonged delay. They argued that the sale transactions were voidable or invalid due to the petitioners’ lack of title, and that the concurrent decrees and prior judgments negate any arguable case for appeal. They also highlighted the long passage of time since the 2007 and 1989 documents and asserted that no justifiable reason was adduced for the delay, supporting dismissal of the CM application and the RSA.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
John K.P and Another v. Mary Varkey and Others	2014 (4) KHC 36; 2014 (4) KLT SN 28	Positive	Cited to reinforce the proposition that the merits must be considered when assessing sufficiency of cause for condonation of delay; the court relies on this principle in evaluating bona fides and delay.
Kerala State Electricity Board v. Precot Meridian Manu	KE/1769/2016	Positive	Cited for the well-settled standard that bona fides and reasons for delay are essential in condonation analysis and that without credible reasons the delay cannot be entertained.

Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 12[TH] DAY OF OCTOBER 2022 / 20TH ASWINA, 1944 RSA NO. 811 OF 2019** **AGAINST THE JUDGMENT AND DECREE DATED 29.8.2014 IN OS 442/2007 OF III ADDITIONAL SUB COURT, KOZHIKODE AS 11/2015 OF ADDITIONAL DISTRICT COURT KOZHIKODE- II CMCP 69/2019 OF HIGH COURT OF KERALA** ## **APPELLANTS/APPELLANTS/DEFENDANTS:** 1 K.RAMACHANDRAN ADIYODI AGED 59 YEARS S/O.VAMANAN NAMBOOTHIRI, KOODATHINGAL HOUSE, KUTTIKATTUR VILLAGE, VELLIPARAMBA AMSOM, KOZHIKODE TALUK, VELLIPARAMBA.P.O, PIN-673008 2 K.SULOCHANA AGED 59 YEARS D/O.VAMANAN NAMBOOTHIRI, AGED 59 YEARS, KOODATHINGAL HOUSE, KUTTIKATTUR VILLAGE, VELLIPARAMBA DESOM, KOZHIKODE TALUK, VELLIPARAMBA.P.OPIN-673008 BY ADV E.NARAYANAN ## **RESPONDENT/RESPONDENT/PLAINTIFF:** T.MUHAMMED, AGED 42 YEARS S/O.MUNHALIKOYA KUMMANAGAL HOUSE, PERUMANNA AMSOM, PUTHOOR DESOM AGED 42 YEARS, KOZHIKODE TALUK, PERUMANNA PO, PIN-673602 REPRESENTED BY MUKTHIAR AGENT, K.S. MUSTHAFA, AGED 58 S/O.MUHAMMED, THENANGAM PARAMBA, CHERUVADI, KODIYATHUR, KOZHIKODE BY ADVS. SRI.V.V.SURENDRAN ADV P.A HARISH - R3, K.SATHEESH KUMAR - R1. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28.09.2022, THE COURT ON 12.10.2022 DELIVERED THE FOLLOWING: R.S.A.No.811/2019 2 ## **M.R.ANITHA, J** ****************** C.M.Appln.No.01 of 2019 & R.S.A No.811 of 2019 -----------------------------------------------Dated this the 12[th] day of October, 2022 ## **ORDER & JUDGMENT** ## **C.M.Appln.No.01 of 2019** Petition to condone the delay of 410 days in filing the appeal. First petitioner/first appellant filed supporting affidavit for and on behalf of 2[nd] appellant also. The appeal was disposed on 17.01.2018. Application for certified copy was submitted on 18.01.2018. Stamp paper was called for on 20.02.2018 and the copy was ready on 23.02.2018. Date notified for taking delivery of the copy was on 23.02.2018. Copy was delivered on 28.02.2018. It is alleged that on receiving the copy of the judgment and decree though lawyer sent a letter to him it was not served on him and he was laid up due to severe back pain R.S.A.No.811/2019 3 and could not contact the lawyer. Lawyer initially advised not to file any appeal against the judgment and decree and advised to file appeal in the connected case alone. After studying the file the lawyer changed the opinion and advised him to file appeal and that caused the delay of 410 days in filing the appeal. 2. Subsequently, with I.A.No.02/2019 petitioner filed additional affidavit in which there is a detailed narration of devolution of property upon the petitioners as per the compromise decree in O.S.No.527/1978 extending to 75 cents. They sold 57.5 cents and the remaining property is 17.5 cents. Real estate broker approached them and they entered into an agreement for sale with the defendant on 07.02.2007 and as an advance in total they received Rs.1,10,000/-. Later, opposite party filed O.S.No.442/07 for return of advance amount alleging that one Sivadasan had executed document No.1237/2007 and sold the property agreed to be sold to one Ummar and thereby the petitioners lost right over the scheduled property. That suit was decreed against which the present appeal has been filed. It R.S.A.No.811/2019 4 is further alleged that document No.1237/2007 is a sham document and on enquiry the petitioners came to know that the documents were executed with respect to the property which the petitioners/appellants obtained as per the compromise decree in O.S.No.527/1978. As per document No.1517/1989, one Mannil Kundoli Sasidharan sells 17 cents of property to Sivadasan and Sivadasan sold 5.67 cents to Ummar as per document No.1237/2007. So, the petitioners filed O.S.No.779/2010 for setting aside those documents and that case was dismissed and against which first appeal was preferred as A.S.No.10/2015 and that also ended in dismissal and against which R.S.A.No.878/2018 has been filed. According to the petitioners, only due to the advise of the counsel ,they did not file any appeal in time as against the decree in O.S.No.442/07 and that actually caused the delay. 3. Power of Attorney Holder of the respondent filed counter affidavit contending that no sufficient reason has been offered to condone the long delay of 410 days. The averment in R.S.A.No.811/2019 5 the affidavit itself would reveal that there is latches on the part of the petitioners in prosecuting the appeal in time. It is filed only as an afterthought taking advantage of the fact that Appeal No.878/2018 has been admitted by this Court. In merit also petitioners have no defence since they admitted receipt of Rs.1,10,000/- as advance sale consideration. Merits of the matter is also to be considered while dealing with question of sufficient cause for condoning the delay ( **John K.P and Another v. Mary Varkey and Others : 2014 (4) KHC 36 : 2014 (4) KLT SN 28** ). It is also admitted that the sale did not take place and there is a cloud over the title of the petitioners. Concurrent decree has been passed holding that the petitioners have no title over the property which was proposed to be sold to the respondent. Money was paid in the year 2007, more than 12 years back and there is no justification on the part of the petitioners in making the respondent further waiting for the realisation of the amount. Hence they prayed for dismissal of the petition. R.S.A.No.811/2019 6 4. Heard both sides. Admittedly, there is a delay of 410 days in filing the appeal. One of the reasons stated by the petitioners is that the Advocate initially gave an opinion not to file appeal since they admitted to have received Rs.1,10,000/-. It is further contended that they have filed a suit for declaring sale deed Nos. 1237/2007 and 1517/1989 as void. But at the time of hearing this petition, second appeal filed against dismissal of O.S.No.779/2010 which was filed by the petitioners for setting aside those documents also heard. So, as per the judgment in R.S.A.No.878/2018 it has been found that document Nos.1517/1989 as well as 1237/2007 are valid documents and the vendor has got transferable interest over the said properties in view of the compromise decree in O.S.No.527/1978. It has also been found in R.S.A.No.878/2018 that after the compromise in O.S.No.527/1978, there was an oral partition among the sharers including the appellants, their mother as well as the son of the predeceased sister of the plaintiffs and by virtue of that oral partition, the plaintiffs along with their mother sold 57.5 R.S.A.No.811/2019 7 cents of property to a third party and with respect to the share of the son of the predeceased sister of the plaintiffs he also sold 17 cents of property as per document No.1517/1989 to Sivadasan and thereafter Sivadasan sold 5.67 cents of property as per document No.1237/07 to Ummar. So, it was found concurrently by all courts that the petitioners/defendants in O.S.No.442/07 have no saleable interest over the property agreed to be sold. So, naturally the agreement of sale entered into by them with the plaintiffs in this case would be illegal since they have no saleable interest over the property. Hence they are bound to return the advance amount received from the respondent. So, in merit also, the petitioners don’t have any arguable case. So, as rightly contended by the respondents this appeal seem to have been filed as an afterthought for strengthening the arguments in R.S.A.No.878/2018 filed by the petitioners as appellants which was filed by them against the concurrent dismissal of O.S.No.779/2010 to declare the above stated two documents as sham documents. R.S.A.No.878/2018 was heard R.S.A.No.811/2019 8 simultaneously with this petition to condone the delay and that has been dismissed by a separate judgment also. 5. So the allegation that the petitioners did not receive communication sent by the lawyer who appeared before the trial court and that the lawyer appeared before the High Court initially advised not to file an appeal and subsequently the lawyer gave an advise to file an appeal etc. are not seem to be sufficient reason for condoning the delay. So also, though it is alleged that the first petitioner was laid up due to severe back pain and hence could not contact the lawyer also could not be substantiated by any medical records. It is well settled 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. (See Kerala State Electricity Board v. Precot Meridian Manu/KE/1769/2016). 6. So, in the present case, as found earlier, the appellant could not offer any sufficient cause for condoning the delay and hence I find no reason whatsoever to entertain this petition and R.S.A.No.811/2019 9 accordingly, petition dismissed. In the facts and circumstances, there is no order as to costs. ## **R.S.A.No.811 of 2018** C.M.Application No.01/2019 to condone the delay is dismissed. Consequently, R.S.A is also dismissed. (sd/-) ## **M.R.ANITHA, JUDGE** jar True copy P.S to Judge