High Court of KeralaSingle Judge2022-01-27Second appeal dismissed as not admitted

K. SADANANDAN v. CHANDRANATH NOORJAHAN and ABDULLA S/O SAINUDHEEN MUSALIYAR

Case / Petition Number:EX.SA NO. 15 OF 2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Shircy V.
Judgment Date: 2022-01-27
Court Decision / Holding: The court dismissed the second appeal as not admitted, holding that there was no satisfactory explanation for the inordinate delay and no substantial question of law demonstrated. The orders indicate that condonation is not warranted, and the appeal fails on both procedural and substantive grounds.
Final Disposition: Second appeal dismissed as not admitted

Parties to the Case

Appellants / Petitioners

K. Sadanandan

Respondents

Chandranath Noorjahan
Abdulla S/O SAINUDHEEN MUSALIYAR

Legal Representation & Advocates

Counsels for Petitioners

• G. Chitra

Counsels for Respondents

• C.M. Mohammed Iquabal
• Anjali G. Krishnan
• P. Abdul Nishad
• Raihanath T.H.

Case Synopsis & Summary

This is a Kerala High Court execution-second-appeal proceeding arising from a suit for recovery of property. The appellant, K. Sadanandan,-plaintiff in O.S.182/2008, challenged an order in E.P.134/2010 (execution petition) that allowed a claim petition in favour of the first respondent over the decree scheduled property. The decree had directed delivery of possession to the plaintiff, but the execution petition permitted the first respondent to stake a right over the property, prompting the appellant to file A.S.No.111 of 2013 challenging the order, along with a delay-condonation petition. The Subordinate Court (Tirur) dismissed the appeal and the review petition, and the matter has now come to this court in EX.SA No.15/2019 with a delay of about 1041 days. The appellant attributes the delay to advanced age and inability to procure documents, claiming counsel assistance throughout and a lack of access to necessary orders. The respondent opposes condonation, arguing a complete lack of satisfactory explanation for such inordinate delay. The court notes the absence of copies of the orders to condone delay and review, and, applying established principles from Balwant Singh and Maniben Devraj Shah, concludes that the delay is not sufficiently explained and that no substantial question of law is demonstrated. The court ultimately dismisses the second appeal as not admitted with no costs.

Legal Doctrines & Maxims

Sufficient cause (test for condonation of delay)
Bona fide conduct and lack of negligence in prosecuting a case
Ends of justice principle
Law of limitation is a substantive law with definite consequences on rights and obligations

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the extraordinary delay of 1041 days in preferring the second appeal is attributable to his advanced age and his inability to procure the necessary documents, including copies of the orders involved in condonation and review petitions. He asserts that he was under the guidance of counsel throughout the proceedings and that the delay occurred due to genuine difficulties in obtaining material papers. He seeks condonation of delay so that the appeal can be heard on its merits, arguing that the question of substantial law may still arise and that the delay should be viewed with indulgence in light of his age and the alleged absence of deliberate negligence. He also notes that the review petition was disposed of on 07.03.2019, a fact not reflected in the loaded record, and maintains that the absence of some orders should not bar admission where substantial justice requires consideration.

Contentions of Respondents

The respondents oppose condonation, arguing that there is no satisfactory or convincing explanation for the 1041-day delay. They emphasize that the appellant was represented by counsel and that the delay appears attributable to negligence or inaction, not genuine impediments. They point out that orders vital to condoning the delay and the review petition were not produced along with the second appeal, reflecting lack of diligence. They contend that no substantial question of law has been identified in the appeal, which is a prerequisite for admit-ting a second appeal, and that allowing such delay would undermine the value of timely litigation and the integrity of execution proceedings.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Balwant Singh v. Jagdish Singh	(2010) 8 SCC 685	Positive	Cited to reinforce that limitation is a substantive law with definite consequences, and that delay cannot be condoned without a satisfactory explanation and fair conduct.
Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai	(2012) 5 SCC 157	Positive	Cited to illustrate the tested doctrine of sufficient cause and bona fide conduct; emphasizes that lack of bona fides or negligence can justify not condoning delay.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE SHIRCY V.`** ``` THURSDAY, THE 27[TH] DAY OF JANUARY 2022 / 7TH MAGHA, 1943 ``` ``` EX.SA NO. 15 OF 2019 ``` ``` AGAINST THE JUDGMENT IN AS 111/2013 OF SUB COURT, TIRUR AGAINST THE ORDER IN EP 134/2010 OF MUNSIFF MAGISTRATE COURT, PONNANI ``` ``` APPELLANT/APPELLANT IN A.S.NO.111 OF 2013/PLAINTIFF/1ST RESPONDENT IN E.A.14/2011 IN E.P.NO.134/2010 :- ``` ``` K.SADANANDAN AGED 73 YEARS S/O. KOCHUKUNJU, SIVASADANAM, KANHIRAMUKKU AMSOM DESOM, PONNANI TALUK. ``` ``` BY ADV G.CHITRA ``` ## **`RESPONDENTS/RESPONDENTS IN A.S.NO.111 OF 2013/DEFENDANTS/PETITIONER &`** ``` 2ND RESPONDENT E.A.14/2011 IN E.P.NO.134/2010 :- ``` ## **`1 CHANDRANATH NOORJAHAN AGED 47 YEARS`** - **`W/O. SHAMSUDEEN, VADAKKEKAD AMSOM-DESOM, CHAVAKKAD TALUK, THRISSUR REPRSENTED BY POWER OF ATTORNEY, SALMAN C, S/O. SHAMSUDEEN, 25 YEARS, VADAKKEKAD AMSOM-DESOM, CHAVAKKAD TALUK THRISSUR 680 506.`** - **`2 ABDULLA S/O. SAINUDHEEN MUSALIYAR, KAPRAKATHEL HOUSE, NEAR BIYYAN KETTU, KANHIRAMUKKU AMSOM DESOM, PONNANI TALUK 680 583.`** ``` EX.SA NO. 15 OF 2019 ``` ``` 2 ``` ``` BY ADVS. C.M.MOHAMMED IQUABAL ANJALI G.KRISHNAN P.ABDUL NISHAD RAIHANATH T.H. ``` ``` THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ADMISSION ON 27.01.2022, THE COURT ON DAY DELIVERED THE FOLLOWING: ``` ``` EX.SA NO. 15 OF 2019 ``` ``` 3 ``` ## **JUDGMENT** This appeal is filed by the appellant/the plaintiff in O.S.No.182 of 2008 on the files of the Munsiff’s Court, Ponnani and the appellant in A.S.No.111 of 2013 of the Subordinate Court, Tirur. 2. The case of the appellant as revealed from the records is as follows :- The suit was filed by this appellant for recovery of the property. The suit was decreed directing the second respondent to put the plaintiff in possession of the plaint scheduled property. But in the Execution Petition filed as E.P.No.134 of 2010 the first respondent has filed a claim petition claiming right over the decree scheduled property. The said petition was allowed by the court by an order dated 31.07.2013. Thereafter, this appellant has filed A.S.No.111 of 2013 challenging the said order with a petition to condone the delay. The said petition as well the appeal were dismissed by ``` EX.SA NO. 15 OF 2019 ``` ``` 4 ``` the learned Sub Judge by an order dated 25.05.2016. Thereafter, a review petition was filed as R.P.No.1772 of 2016 along with a delay petition. The said petition was also dismissed by the court and now this appeal with a delay of 1041 days. 3. Heard the learned counsel for the appellant as well the learned counsel for the first respondent. 4. In the affidavit the appellant would swear that though the review petition was disposed of by the court on 07.03.2019. due to his old age, he could prefer the second appeal only with the delay of 1041 days and hence this petition. 5. In the additional affidavit also, it has been stated by him that due to his old age, he could not procure documents and so no appeal was preferred within the time and hence the delay. 6. The first respondent has opposed the application ``` EX.SA NO. 15 OF 2019 ``` ``` 5 ``` pointing out that there is absolutely no satisfactory explanation to condone the inordinate delay of 1041 days in filing the appeal. 7. At the outset it is to be noted that though the appellant has a case that the review petition was dismissed on 07.03.2019, the copy of the order was not produced along with the second appeal. It is also to be noted that the claim petition filed by the first respondent was allowed by the court on 31.07.2013, the appeal was filed with I.A.No.3398 of 2013 to condone the delay in filing the appeal. The copy of the said order has also not been produced along with this appeal. But the copy of the judgment in the appeal would reveal that the petition to condone the delay was dismissed and hence the appeal was also dismissed. 8. As mentioned above, this appeal is filed with a delay of 1041 days. The delay can be condoned only if the petitioner is able to convince the court that sufficient cause was there to condone the delay. The appellant has only stated that due to ``` EX.SA NO. 15 OF 2019 ``` ``` 6 ``` his old age, he could not prefer the appeal in time. Whether the appellant is having sufficient cause to condone the delay and to admit the appeal is the question now falls for consideration. 9. It is well settled that a second appeal is maintainable only if substantial question of law is involved. Here, the appellant could not point out any substantial question of law, so as to entertain the appeal. But as the question to be looked into first is whether sufficient cause is there to condone the delay of 1041 days, that aspect has to be decided first. 10. It is well settled that if a litigant is thoroughly negligent in preferring the appeal in time and no sufficient reason has been projected to entertain an appeal, it is not possible to admit the appeal even if substantial question of law is involved. Here, the reason stated for the delay is only the age of the petitioner. It is true that the petitioner is aged 73 years. But that alone is not at all a reason to condone the ``` EX.SA NO. 15 OF 2019 ``` ``` 7 ``` delay, as he was contesting the suit before the court below with the assistance of a counsel. He was represented by a counsel throughout the proceedings. The non production of the order to condone the delay while filing the first appeal and also the non production of the order in the review petition would also shows that the petitioner was thoroughly negligent in prosecuting his case. The court has power to extend the period of limitation/condone delay only on fair and reasonable grounds. ## 11. In _**Balwant Singh v. Jagdish Singh (2010) 8 Supreme Court Cases 685,**_ it is held as follows :- “26. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstance of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of ``` EX.SA NO. 15 OF 2019 ``` ``` 8 ``` negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly”. ## 12. In _**Maniben Devraj Shah V. Municipal Corpn. of Brihan Mumbai (2012) 5 Supreme Court Cases 157,**_ it is observed as follows :- “24. What colour the expression “sufficient cause” would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay”. 13. Here, the facts of the case would also reveal that in the execution petition, the claim petition filed by the first ``` EX.SA NO. 15 OF 2019 ``` ``` 9 ``` respondent was allowed by the court as early as on 31.07.2013 as he was having valuable right. There was inordinate delay in filing the appeal and now also there is unreasonable delay and that itself shows that the party was thoroughly negligent in prosecuting the case. The explanation lacks _bona fide_ and plausible reasons. Since, there is no satisfactory or convincing explanation on the side of the petitioner in condoning the delay and to admit the second appeal, I find that this C.M.Appln.No.1 of 2019 is only to be dismissed. Since the C.M. Application is not allowed, the appeal stands dismissed as not admitted. Therefore, this second appeal is dismissed as not admitted. No costs. **Sd/-** **SHIRCY V. JUDGE** ## **SMA**