K.G. Nampoothiri v. G. Venugopalan Nair

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## ## THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR SATURDAY, THE 30TH JANUARY 2010 / 10TH MAGHA 1931 SA.No. 178 of 1999 ------------------------------AS.20/1998 of SUB COURT, THIRUVALLA OS.552/1991 of MUNSIFF COURT, THIRUVALLA .................... ## APPELLANT/APPELLANT/PLAINTIFF: K.G.NAMPOOTHIRI, KAINIKKARA MANA, MANNAR MURI, KAPRA VILLAGE, THIRUVALLA TALUK. ## BY ADV. SRI.P.R.VENKETESH ## RESPONDENT/RESPONDENT/DEFENDANT: G.VENUGOPALAN NAIR, KOYIPURATHU VEEDU, MANNAR MURI, KAPRA VILLAGE, THIRUVALLA TALUK. ## ADV. SRI.THOMAS NINAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30/01/2010, THE COURT ON THE SAME DAY DELIVERED M.Sasidharan Nambiar, J. -------------------------- S.A.No.178 of 1999 -------------------------- ## **JUDGMENT** Appellant instituted O.S.No.552/1991 before Munsiff's Court, Thiruvalla seeking a decree for mandatory injunction for removal of the bunk shop put up by the respondent in the plaint schedule property. Appellant instituted the suit contending that plaint schedule property was set apart for the affairs of the family Devaswom as per family partition deed 2778 of 1950 and his father was administering the affairs of the Devaswom and after his death in 1980, appellant is administering the properties of Devaswom and the suit is filed in that capacity. 2. According to the plaint allegations, there was a shop building, having three rooms, in existence, belonging to the Devaswom. The southern room was rented out to Mathew, the northern most room to Madhavan Nair and the middle room to the SA 178/99 2 respondent on monthly rent. In August 1991, due to heavy rain and wind, one banyan tree, one mango tree and a coconut tree got uprooted and fell on the shop building, demolishing the entire structure. It is contended that, thereafter, no building was in existence. When the respondent and Madhavan Nair attempted to put up a structure, appellant instituted O.S.No.351/1991 for a decree of injunction, restraining them from constructing a new structure and an order of temporary injunction was granted. While so, Madhavan Nair put up a bunk shop. Appellant instituted O.S.No.545/1991 to evict Madhavan Nair from the said bunk shop. Respondent put up a bunk shop out side the original site of the building. The suit is instituted contending that he has no right to do so and therefore, a mandatory injunction is to be granted to remove the structure. 3. Respondent filed a written statement denying the case that there originally existed a building. It is contended that in the plaint schedule SA 178/99 3 property, respondent put up a bunk shop in 1965 after obtaining the land on ground rent for commercial purpose and since then he has been paying the ground rent and has been conducting stationery business there and therefore, he is entitled to the protection available under Kerala Land Reforms Act (hereinafter referred to as 'the Act'). As the plea would amount to a claim under Section 106 of the Act, learned Munsiff referred that question to the Land Tribunal under Section 125(3) of the Act. Land Tribunal entered a finding on 23.1.1996 that respondent is entitled to the protection under Section 106 of the Act. Learned Munsiff, accepting the finding of the Land Tribunal, by judgment dated 27.2.1996, dismissed the suit holding that respondent is a tenant entitled to fixity of tenure under the Act. 4. Appellant filed A.S.No.20/1998 before Sub Court, Thiruvalla challenging the judgment and decree. That appeal was not filed within time. I.A.No.233/1998 was filed to condone the delay. SA 178/99 4 Respondent resisted the application for condonation of delay. Learned Sub Judge, as per order dated 25.11.1998, dismissed the application and refused to condone the delay. Consequently, the appeal was also dismissed. Second appeal is filed challenging the dismissal of the application for condonation of delay and consequent dismissal of the appeal. 5. Second appeal was admitted formulating the following substantial question of law: ## Whether the first appellate court has exercised the discretion properly and whether dismissal of the application to condone the delay was justifiable? 6. Learned counsel appearing for the appellant was heard. 7. Argument of the learned counsel is that learned Munsiff should not have referred the claim for protection under Section 106 of the Act to the Land Tribunal under Section 125(3), especially when there was no specific plea for that purpose, as it is for the civil court to decide the question and not for the Land Tribunal. Reliance was placed on a SA 178/99 5 Division Bench decision of this Court in **Govinda Panicker v. Sreedhara Warrier** (2000 (2) KLT 43). Learned counsel submitted that in such circumstances, it is for the first appellate court to consider whether respondent is entitled to the protection of Section 106 of the Act and the learned Sub Judge was not justified in denying an opportunity to have a decision on merits on the facts of the case. Learned counsel pointed out that son of the appellant and a close relative were involved in a road traffic accident and the cousin died and son of the appellant, who sustained serious injuries, was hospitalised and was under treatment for a long period and when Exhibit A1 death certificate and Exhibit A2 medical certificate, establish the death of the cousin and the injury sustained by the son and when the appellant was examined, learned Sub Judge should have condoned the delay, if at all on terms and dismissal of the application for condonation of the delay was illegal. Reliance was placed on the SA 178/99 6 decisions of the Apex Court in **Ram Nath Sao v. Gobardhan Sao** (AIR 2002 SC 1201) and in **The State** **of West Bengal v. The Administrator, Howrah Municipality** (AIR 1972 SC 749), in support of the contentions. 8. Even though there is no specific plea in the written statement that respondent is entitled to the benefit under Section 106 of the Act, there is a plea that he is entitled to the benefit under the Act, alleging that land was obtained on ground rent for commercial purpose in 1965 and he put up a bunk shop therein and has been in possession of the property since then. In such circumstances, it cannot be said that the question whether respondent is entitled to protection under Section 106 of the Act does not arise for consideration. Learned Munsiff evidently referred the question to the Land Tribunal as it was the law prevailing till the Division Bench decision in **Govinda Panicker's case** (supra). But, in view of the Division Bench decision and the subsequent decisions, a claim for SA 178/99 7 protection under Section 106 of the Act is not a matter to be referred to the Land Tribunal under Section 125(3) of the Act, as a commercial tenant exempted under Section 3 (iii), who was given the benefit under Section 106, as such a tenant, is not entitled to fixity of tenure. Learned Munsiff held that respondent is entitled to fixity of tenure. That finding is illegal. In such circumstances, appellant has, definitely, an arguable case in the appeal and in such circumstances, the appeal is to be disposed on merits. 9. Admittedly, there was an inordinate delay in filing the appeal. As found by the learned Sub Judge, trial court dismissed the suit on 27.2.1996. Copy application for getting a certified copy of the judgment was submitted only on 12.1.1998. Even though the date notified to take delivery of the certified copy was 24.1.1998, delivery was taken only on 5.2.1998. Even thereafter, the appeal was not immediately filed. Instead, it was filed only on 9.3.1998. In such circumstances, it cannot be SA 178/99 8 said that there was no laches or negligence on the part of the appellant. 10. Exhibit A1 death certificate, relating to the cousin of the appellant and Exhibit A2 medical certificate, relating to the son of the appellant, establish that son of the appellant and the cousin were involved in a road traffic accident and the cousin died in the accident and the son sustained grievous injuries and was under prolonged treatment. According to the appellant, due to those reasons, he could not devote proper attention to the case and therefore, he could not file the appeal in time. True, that by itself may not be sufficient to explain the inaction of the appellant to challenge the judgment within the statutory period. But, it cannot be said that by delaying the filing of the appeal or protracting the proceedings, appellant is to gain. Therefore, this is not a case where the appellant gained anything by protracting the proceedings. If at all, there is only negligence or laches on the part of the SA 178/99 9 appellant in filing the appeal within the statutory period. 11. While considering the application to condone the delay in filing the appeal, courts have to remind themselves that the primary function of a court is to adjudicate the dispute between the parties, so as to advance substantial justice. As cautioned by their Lordships of the Apex Court in **Ram Nath Sao's case** (supra), the object of providing a legal remedy is to repair the damage caused by reason of legal injury and the Rules of limitation are not meant to destroy the rights of the parties. Instead, they are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The law of limitation is founded on public policy. It is enshrined for the general welfare that a period be put to litigation. Rules of limitation are not meant to destroy the rights of the parties, but only to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The idea is that every legal SA 178/99 10 remedy must be kept alive for a legislatively fixed period of time. It is also to be borne in mind that refusal to condone the delay would result in foreclosing a plaintiff or defendant from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. It is for the court, in all cases, to appreciate the facts and find whether there is sufficient cause to condone the delay, as provided under Section 5 of Limitation Act. It is also to be borne in mind that unless there is laches on the part of the litigant, there may not be delay in filing an appeal. But that alone is not enough, to turn down the plea to condone the delay and to shut the doors of justice against him. Only if the explanation does smack of mala fides or is put forth as part of a dilatory strategy, condonation of delay is not to be refused. Facts and circumstances of this case establish that delay was not occasioned due to any dilatory tactics. It does not smack of mala fides also. In such circumstances, in the interest of SA 178/99 11 justice, learned Sub Judge should have allowed the application to condone the delay, on terms and disposed the appeal on merits. Considering the inordinate delay of about 750 days, the delay can only be condoned on heavy terms. Appeal will stand allowed and I.A.No.233/1998 in A.S.No.20/1998 will stand allowed and A.S.No. 20/1998 on the file of Sub Court, Thiruvalla will stand readmitted, on the appellant paying or depositing a cost of Rs.5,000/- (Rupees Five thousand only) to the respondent within thirty days from today, failing which the appeal will stand dismissed without any further order. If the cost is deposited, the records shall be sent back to Sub Court, Thiruvalla immediately and learned Sub Judge to dispose A.S.No.20/1998 in accordance with law. 30[th] January, 2010 (M.Sasidharan Nambiar, Judge) tkv SA 178/99 12 M.Sasidharan Nambiar, J. -------------------------S.A.No.178 of 1999 -------------------------- ## **JUDGMENT** 30[th] January, 2010