Kunjumol Mathew and others v. Francis Edwin and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA FRIDAY, THE 3[RD] DAY OF FEBRUARY 2023 / 14TH MAGHA, 1944 RSA NO.203 OF 2020** **AGAINST THE JUDGMENT AND DECREE IN AS 187/2019 OF PRINCIPAL DISTRICT COURT, ERNAKULAM DATED 18.02.2020 AGAINST JUDGMENT AND DECREE IN I.A.NO.3950 OF 1998 IN OS 654/1995 OF II ADDITIONAL SUB COURT, ERNAKULAM DATED 24.06.2017 APPELLANTS/APPELLANTS/DEFENDANTS 21, 22 & 25:** 1 KUNJUMOL MATHEW AGED 54 YEARS D/O.LATE MATHEW AZHIKKAKATH, AZHIKKAKATH HOUSE, ERNAKULAM, KOCHI-27. 2 FILLIS MATHEW,(DIED) (LR IMPLEADED) AGED 49 YEARS D/O.LATE MATHEW AZHIKKAKATH, AZHIKKAKATH HOUSE, SOUTH CHITTOOR, KOCHI-27. 3 SHOBY MATHEW AGED 41 YEARS S/O.LATE MATHEW AZHIKKAKATH, AZHIKKAKATH HOUSE, SOUTH CHITTOOR-27. ADDL.A4 JEROME.E.C AGED 54 YEARS S/O.CHRISTOPHER,EDEZHATHU HOUSE,KUMBALANGI P.O.,COCHIN-7. (IS IMPLEADED AS THE LEGAL REPRESENTATIVE OF THE DECEASED 2ND APPELLANT AS PER ORDER DATED 19.11.2021 IN IA.4/2021 IN RSA.203/2020) BY ADVS. S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA SRI.R.GITHESH SRI.MANJUNATH MENON SRI.AJAY BEN JOSE SHRI.HARIKRISHNAN S. SRI.V.A.JOHNSON R.S.A.No.203/2020 2 **RESPONDENTS/RESPONDENTS 1,2,4 TO 11,13,14,16 TO 21,23 TO 33 AND 35 TO 58/PLAINTFFS 2 & 3 AND DEFENDANTS 2 TO 9, 11, 12, 14, 15, 17, 18, 20, 23, 27 TO 30, 32 TO 38, 40 TO 58, 60 TO 64:** - 1 FRANCIS EDWIN,(DIED)LRS IMPLEADED AGED 46 YEARS S/O.LATE IGNATIUS AND BRIDGIT IGNATIUS, BUSINESS, RESIDING AT THAYYIL HOUSE, VELI, FORT KOCHI, KOCHI-682001. - 2 JUDE LESLIE, S/O.LATE IGNATIUS AND BRIDGIT IGNATIUS, BUSINESS, AGED 46, RESIDING AT THAYYIL HOUSE, VELI, FORT KOCHI, KOCHI-682001. - 3 ELIZEBATH CHANDY,(POA RECORDED) AGED 56, W/O.LATE CHANDY AZHIKKAKATH, RESIDING AT GANDHI NAGAR, VEERAJPET.P.O., KARNATAKA STATE571218. - 4 MARGRET @ LATHA CHANDY,(POA RECORDED) D/O.CHANDY AND W/O.K.J.MANI, AGED 36 YEARS, MATTATHIL HOUSE, APPAPPARA.P.O., WAYANAD-670646. - 5 DELPHI CHANDY,(POA RECORDED) D/O.CHANDY AZHIKKAKATH, AGED 34 YEARS, W/O.ANTONY BROWN, KALARIKKAL HOUSE, KARTHEDOM, ELAMKUNNAPUZHA.P.O., PIN-682503. - 6 TELMA CHANDY,(POA RECORDED) W/O.LANCY, AGED 32, ST.FRANCIS CHURCH ROAD, UDYOGA NAGAR, KATHRUKADAVU JUNCTION, KALOOR682017. - 7 ALICE CHANDY, D/O.LATE CHANDY AZHIKKAKATH, AGED 30 YEARS, GANDHI NAGAR, VEERAJPET, KARNATAKA-571218. - 8 CHARLES CHANDY,(POA RECORDED) S/O.LATE CHANDY AZHIKKAKATH, AGED 28 YEARS, GANDHI NAGAR, VEERAJPET, KARNATAKA-571218. - 9 SELPHY CHANDY,(POA RECORDED) S/O.LATE CHANDY AZHIKKAKATH, AGED 26 YEARS, GANDHI NAGAR, VEERAJPET, KARNATAKA-571218. R.S.A.No.203/2020 3 - 10 JOHNSON CHANDY,(POA RECORDED) S/O.LATE CHANDY AZHIKKAKATH, AGED 24 YEARS, GANDHI NAGAR, VEERAJPET, KARNATAKA-571218. - 11 JOY CHANDY,(POA RECORDED) S/O.LATE CHANDY AZHIKKAKATH, AGED 26 YEARS, GANDHI NAGAR, VEERAJPET, KARNATAKA-571218. - 12 NIXON CHANDY,(POA RECORDED) S/O.CHANDY AZHIKKAKATH, AGED 26 YEARS, GANDHI NAGAR, VEERAJPET, KARNATAKA-571218. - 13 NANCY JOSEPH, D/O.LATE JOSEPH AZHIKKAKATH, AGED 37, PERIYAPATTANAM, MYSORE, KARNATAKA STATE-571107. - 14 DARLSY JOSEPH, S/O.LATE JOSEPH AZHIKKAKATH, AGED 35, PERIYAPATTANAM, MYSORE, KARNATAKA STATE-571107. - 15 JOSY JOSEPH, S/O.LATE JOSEPH AZHIKKAKATH, AGED 31, PERIYAPATTANAM, MYSORE, KARNATAKA STATE-571107. - 16 FRANCY JOSEPH, S/O.LATE JOSEPH AZHIKKAKATH, AGED 29, PERIYAPATTANAM, MYSORE, KARNATAKA STATE-571107. - 17 HELEN MATHEW, D/O.LATE MATHEW AZHIKKAKATH, AGED 32, AZHIKKAKATHHOUSE, SOUTH CHITTOOR, ERNAKULAM, KOCHI-27. - 18 ASHIL MATHEW, S/O.LATE MATHEW AZHIKKAKATH, AGED 28, AZHIKKAKATHHOUSE, SOUTH CHITTOOR, ERNAKULAM, KOCHI-27. - 19 MARY ANTONY @ BABY, W/O.LATE ANTONY, AZHIKKAKATH, AGED 55 YEARS, OLD GADANGA STREET, CHICPET, VEERAJPET, KARNATAKA571218. - 20 REMY, D/O.LATE ANTONY AZHIKKAKATH, AGED 32 YEARS, OLD GADANGA STREET, CHICPET, VEERAJPET, KARNATAKA571218. - 21 RATHI ANTONY, D/O.LATE ANTONY AZHIKKAKATH, AGED 20 YEARS, OLD GADANGA STREET, CHICPET, VEERAJPET, R.S.A.No.203/2020 4 - KARNATAKA-571218. - 22 RAJAN ANTONY, S/O.LATE ANTONY AZHIKKAKATH, AGED 28 YEARS, OLD GADANGA STREET, CHICPET, VEERAJPET, KARNATAKA571218. - 23 ANNIE AUGUSTINE, W/O.AUGUSTINE AZHIKKAKATH, AGED 48 YEARS, AZHIKKAKATH HOUSE, SOUTH CHITTOOR, ERNAKULAM, KOCHI-27. - 24 REJI AUGUSTINE, S/O.LATE AUGUSTINE AZHIKKAKATH, AGED 26 YEARS, AZHIKKAKATH HOUSE, SOUTH CHITTOOR, ERNAKULAM, KOCHI-27. - 25 AJI AUGUSTINE, S/O.LATE AUGUSTINE AZHIKKAKATH, AGED 24 YEARS, AZHIKKAKATH HOUSE, SOUTH CHITTOOR, ERNAKULAM, KOCHI-27. - 26 FRIGIE AUGUSTINE, S/O.LATE AUGUSTINE AZHIKKAKATH, AGED 22 YEARS, AZHIKKAKATH HOUSE, SOUTH CHITTOOR, ERNAKULAM, KOCHI-27. - 27 SHIJI AUGUSTINE, S/O.LATE AUGUSTINE AZHIKKAKATH, AGED 20 YEARS, AZHIKKAKATH HOUSE, SOUTH CHITTOOR, ERNAKULAM, KOCHI-27. - 28 JIMMY AUGUSTINE, S/O.LATE AUGUSTINE AZHIKKAKATH, AGED 18 YEARS, AZHIKKAKATH HOUSE, SOUTH CHITTOOR, ERNAKULAM, KOCHI-27. - 29 ROSY FRANCIS, W/O.FRANCIS KEERAMPILLY, AGED 48 YEARS, VADUTHALA, KOCHI. - 30 PAUL EARNEST, S/O.V.P.LOUIS, AGED 49 YEARS, VADASSERY HOUSE, ELOOR FERRY, UDYOGAMANDAL, ERNAKULAM-683501. - 31 FRANCIS CHARLES,(DIED) (LRS IMPLEADED) S/O.V.P.LOUIS, AGED 48 YEARS, VADASSERY HOUSE, ELOOR FERRY, UDYOGAMANDAL, ERNAKULAM-683501. - 32 EDWIN LOUIS, S/O.V.P.LOUIS, AGED 45 YEARS, VADASSERY HOUSE, R.S.A.No.203/2020 5 - ELOOR FERRY, UDYOGAMANDAL, ERNAKULAM-683501. - 33 SHERIN BERNADES, - S/O.V.P.LOUIS, AGED 42 YEARS, VADASSERY HOUSE, ELOOR FERRY, UDYOGAMANDAL, ERNAKULAM-683501. - 34 JOSEPH NOXON, S/O.V.P.LOUIS, AGED 37 YEARS, VADASSERY HOUSE, ELOOR FERRY, UDYOGAMANDAL, ERNAKULAM-683501. - 35 BINDU GLANCY, W/O.LATE GLANCY JOSEPH, AGED 39 YEAR, PERIYAPATANAM, MYSORE-571107. - 36 MEGHNA, D/O.LATE GLANCY JOSEPH, AGED 15YEAR, PERIYAPATANAM, MYSORE-571107. - 37 GREESHMA, D/O.LATE GLANCY JOSEPH, AGED 15 YEAR, PERIYAPATANAM, MYSORE-571107. - 38 SEVENTY KUNJUMON,(POA RECORDED) W/O.KUNJUMON CHANDY, C/O.HOLY FAMILY INDUSTRIES, DINOEL HOUSE, 7TH BLOCK GANDHI NAGAR, VIRAJPET571218. - 39 DINO KUNJUMON,(POA RECORDED) S/O.KUNJUMON CHANDY, MINOR, REPRESENTED BY LEGAL GUARDIAN MOTHER SEVENTY KUNUMON, C/O.HOLY FAMILY INDUSTRIES, DINOEL HOUSE, 7TH BLOCK GANDHI NAGAR, VIRAJPET-571218. - 40 NOEL KUNJUMON,(POA RECORDED) S/O.KUNJUMON CHANDY, MINOR, REPRESENTED BY LEGAL GUARDIAN MOTHER SEVENTY KUNUMON, C/O.HOLY FAMILY INDUSTRIES, DINOEL HOUSE, 7TH BLOCK GANDHI NAGAR, VIRAJPET-571218. (IT IS RECORDED THAT RESPONDENTS 3 TO 6,8 TO 12 AND 38 TO 40 IN RSA.203/2020 HAVE DULY AUTHORISED THE 7TH RESPONDENT TO APPEAR AND CONDUCT THE CASE ON THEIR BEHALF BY A GENERAL POWER OF ATTORNEY DATED 27.02.2020 AS PER ORDER DATED 09.06.2022 IN MEMO DATED 21.03.2022 IN RSA.203/2020. - 41 SUSAN GEETHU, D/O.LATE P.P.GEORGE, AGED 18 YEARS, PULIPARAMBIL HOUSE, VENNIKKULAM.P.O., VIA. THIRUVANKULAM689544. R.S.A.No.203/2020 6 - 42 LEENA XAVIER, W/O.P.P.XAVIER, AGED 47 YEARS, PULIPARAMBIL HOUSE, PACHALAM.P.O., COCHIN-682012. - 43 PETER CATLINE, S/O.P.P.XAVIER, AGED 17 YEARS, PULIPARAMBIL HOUSE, PACHALAM.P.O., COCHIN-682012. - 44 RYNE XAVIER, S/O.P.P.XAVIER, AGED 16 YEARS, PULIPARAMBIL HOUSE, PACHALAM.P.O., COCHIN-682012. - 45 RONALD XAVIER, S/O.P.P.XAVIER, AGED 16 YEARS, PULIPARAMBIL HOUSE, PACHALAM.P.O., COCHIN-682012. - 46 MERCY MATHEW, W/O.MATHEW, AGED 57 YEARS, PUTHIYAPARAMBIL HOUSE, NEAR COMMUNITY HALL, EDAYAKUNNAM, SOUTH CHITTOOR.P.O., PIN-682017. - 47 ELIZEBATH, W/O.T.R.AUGUSTINE, AGED 55 YEARS, THACHUTHAEA HOUSE, BSNL QUARTERS, B-29, PANAMPILLY NAGAR.P.O., COCHIN-682030. - 48 P.P.ANTONY, AGED 54 YEARS, PULIPARAMBIL HOUSE,CHEMBAKKARA MARKET ROAD, MARADU NORTH, MARADU.P.O., KOCHIN682304. - 49 P.P.CLEETUS, AGED 49 YEARS, PULIPARAMBIL HOUSE, 8E, LAVENDE SKYLINE, RIVER DALE APARTMENT, POONITHURA.P.O., COCHIN-682031. - 50 BEENA, W/O.V.J.LAWRANCE, 47 YEARS, VALIYAPARAMBIL HOUSE, MUNDUMVELI.P.O., COCHIN-682507. - 51 P.P.JOSSY, AGED 46 YEARS, PULIPARAMBIL HOUSE, - UDAYAMPEROOR.P.O. VIA, THRIPOONITHURA-682301. - 52 P.P.RAPHEL, AGED 44 YEARS, PULIPARAMBIL HOUSE, MARADU.P.O., COCHIN-682304. - 53 P.P.JAMES, AGED 42 YEARS, PULIPARAMBIL HOUSE, MARADU.P.O., COCHIN-682304. R.S.A.No.203/2020 7 ADDL.54 REETHA CHARLES (THE LEGAL REPRESENTATIVE OF THE DECEASED RESPONDENT 31 AS IMPLEADED AS ADDL.R54 AS PER ORDER DATED 24.06.2022 IN IA.5/2021 IN RSA.203/2020) ADDL.55 EVA, W/O.FRANCIS EDWIN,AGED 56 YEARS,THAYYIL HOUSE,VELI,FORTKOCHI,KOCHI-682 001. ADDL.56 IGNATIOUS, S/O.FRANCIS EDWIN,AGED 28 YEARS,THAYYIL HOUSE,VELI,FORTKOCHI,KOCHI-682 001. ADDL.57 BRIGITH, D/O.FRANCIS EDWIN,AGED 26 YEARS,THAYYIL HOUSE,VELI,FORTKOCHI,KOCHI-682 001. (LEGAL REPRESENTATIVES OF THE DECEASED R1 ARE IMPLEADED AS ADDL.R55 TO R57 AS PER ORDER DATED 05.12.2022 IN IA.6/2022) BY ADVS. SMT.SANTHI K.PAI SHASHIKALA V.N, SONY.P.G ARATHY PRAKASH ATHULYA MARTIN ANJANA M.VADHYAR AADITHYAN S. MANNALI FOR R1, R2 DILEEP VARGHESE, TESMY VARGHESE FOR R3 TO R12, R29, R38 TO R40 SAJAN MANNALI FOR ADDL.R55 TO R57 (BY ORDER) ADV.SRI. P. VISWANATHAN (SR), SRI.B.RAMACHANDRAN FOR R19 TO R22 THIS REGULAR SECOND APPEAL HAVING COME UP FOR FINAL HEARING ON 11.01.2023, THE COURT ON 03.02.2023 DELIVERED THE FOLLOWING: R.S.A.No.203/2020 8 ## **M.R.ANITHA, J** ****************** R.S.A.No.203 of 2020 --------------------------------------------Dated this the 3[rd] day of February, 2023 ## **JUDGMENT** This appeal has been directed against the judgment and decree in A.S.No.187/2019 on the file of District Court, Ernakulam which in turn arise out of the final decree passed in I.A.No.3950/1998 in O.S.No.654/1995 on the file of Sub Court, Ernakulam. 2. A.S.No.187/2019 has been dismissed in consequence of dismissal of I.A.No.7550/2019 which was filed under Section 5 of the Limitation Act, 1963 to condone the delay of 597 days in filing the appeal. Appellants are defendants 21, 22 and 25 in O.S.No.654/1995. Their grievance is that trial court appointed an Advocate Commissioner with the assistance of a private surveyor R.S.A.No.203/2020 9 to effect partition as per the preliminary decree and the Advocate Commissioner filed the report and plan which were marked as Exts.C1, C1(a), (b), (c), (d) and (e) reports and appellants filed objections to the Commission report and filed petition to set aside commission report as I.A.No.929 of 2017. Respondents 32 to 37 in the final decree proceedings also filed I.A.No.930/2017 to set aside the commission report. After recording the evidence in the above petitions, the trial court dismissed the petitions and thereafter passed the final decree without giving an opportunity to the appellants to challenge the order in the above I.As. Aggrieved by the judgment and decree, appellants preferred the first appeal but there was a delay of 597 days in filing the appeal. They filed affidavit explaining sufficient cause for the delay in not filing the appeal in time. But the first appellate court without properly considering the petition to condone the delay mechanically dismissed the petition and consequently, the appeal also dismissed. It is contended by the learned counsel for the appellant that a detailed affidavit has been filed explaining the R.S.A.No.203/2020 10 reasons for the delay. 3. The first appellate court, without considering any of the averments in the affidavit, found that though the Advocate was entrusted to apply for certified copy, there was no response and ultimately when they contacted the Advocate, it was informed that the certified copy of the judgment and decree received were misplaced at the time when the office of the Advocate was shifted. Learned counsel would vehemently contend that, that is not the actual reason explained and they have not alleged in the affidavit that there was no response from the Advocate and hence, according to them, I.A.No.7550/2019 has been disposed of by the first appellate court without properly appreciating the averments in the affidavit and that has caused great prejudice to the appellant. It is also contended that the reasons stated for the dismissal of the petition is that each day's delay has not been explained as per the settled position of law, which, according to him, is against the well established principles of law. Hence, according to the learned counsel, impugned order R.S.A.No.203/2020 11 passed by the first appellate court dismissing the appeal in a case where the appellants are highly aggrieved by the commissioner's report and plan and two petitions were filed for setting aside the commissioner's report and plan and immediately on the dismissal of the petition to set aside the commission report, on the third day, without giving an opportunity to the appellants to challenge the order, the final decree also passed, has caused miscarriage of justice. It is contended that valuable properties abutting the PWD road in Cochin Corporation has been allotted to the contesting respondents and appellants were given wet lands having no value and the partition effected as per the commissioner's report by the Munsiff is highly inequitable and arbitrary and in the said circumstances, first appellate court ought to have considered the appeal on merits. 4. **State (NCT of Delhi) v. Ahmed Jaan : 2008 KHC 6717 : AIR 2009 SC Supp 695** was relied on by the learned counsel for the appellant wherein a two Judge Bench of the Apex Court held that the expression “sufficient cause” should receive a R.S.A.No.203/2020 12 liberal construction and the true guide for a Court to exercise the discretion under Section 5 is whether the party acted with reasonable diligence in prosecuting the appeal. Unless want of bona fides or inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned. That was a case in which State filed a revision and held in that context that if appeals brought by the State are lost for default no person is individually affected but what in the ultimate analysis suffers, is public interest. State cannot be put on the same footing as an individual. Individual would always be quick in taking decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants. So, the crucial question for consideration in the present case is whether the appellant offered sufficient cause for condoning the delay of 597 days in filing the appeal before the first appellate court. R.S.A.No.203/2020 13 ## 5. **Bhivchandra Shankar More vs Balu Gangaram** **More : (2019) 6 SCC 387** was relied on further to support the contention that the term 'sufficient cause' should be given liberal construction so as to advance sustainable justice when there is no inaction, no negligence nor want of bonafides could be imputed to party seeking condonation of delay. It is also held that this phrase is elastic enough to enable courts to apply law in meaningful manner which serves ends of justice. No hard and fast rule has been or can be laid down for deciding applications for condonation of delay but over the years it is observed that liberal approach needs to be adopted in such matters so that substantive rights of parties are not defeated only on ground of delay. 6. In paragraph 16 of the above decision N. Balakrishnan v M. Krishnamurthy (1998) 7 SCC 123 has been quoted wherein it has been held that rules of limitations are not meant to destroy the rights of parties and are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The R.S.A.No.203/2020 14 object of providing legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. It is also held that time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. 7. Sri.P.Viswanathan, senior counsel appearing for the first respondent, on the other hand, would vehemently contend that this is a case in which the first appellate appellate court dismissed the appeal consequent to the dismissal of the petition to condone the delay. While sitting in second appeal against such order passed by the first appellate court, the Apex Court as well as this Court have considered the parameters to be considered in such cases. 8. **Mamtaz and Others v. Gulsuma Alias Kulusuma : 2022 KHC Online 6050 : 2022 (1) KLT OnLine 1146 (SC) : 2022 (4) SCC 555** was relied on by the learned counsel in which R.S.A.No.203/2020 15 Apex Court considered the judgment and order of the High Court of Karnataka by which High Court allowed the appeal which was dismissed by the first appellate court on the ground of limitation without going into the merits. Paragraphs 5, 6 and 8 of the said judgment have been highlighted by the learned counsel wherein the Apex Court has held that there was no decision by the first appellate court on merits in that case and hence, if at all, the High Court was of the opinion that first appellate court erred in not condoning the delay in filing the appeal and dismissing the appeal on the ground of limitation, the High Court could have set aside the order passed by the first appellate court dismissing the appeal on the ground of limitation and thereafter remand the matter to the first appellate court to decide the appeal on merits. It was held that the procedure adopted by the High Court is unknown to the procedure known to law under the provisions of the Code of Civil Procedure and hence the judgment and decree of the High Court was set aside and the order of the first appellate court was restored and the appellant before the first R.S.A.No.203/2020 16 appellate court was permitted to move an application for revival of I.A.No.01/2020 and the first appellate court was directed to revive I.A.No.01/2020 which was withdrawn by the original defendant and first appellate court was directed to decide and dispose application for condonation of delay and if the delay is condoned, the first appellate court is directed to dispose of the first appeal in accordance with law on its merits. 9. On going through the above decision, it could be seen that, that was a case in which the appeal was filed out of time and there was no application to condone the delay and the earlier application for condonation of delay of two years and 7 months was withdrawn and it was in the above circumstances, the above decision was rendered. So the fact situation of the present case is quite different. Here, the appellant has got a specific case that he has filed a petition to condone the delay explaining the reasons for the delay caused and it has not been properly considered by the first appellate court. So, the decision above cited has no application to the case in hand. R.S.A.No.203/2020 17 10. In **Balwant Singh v. Jagdish Singh and Others : 2010 KHC 4451 : AIR 2010 SC 3043 : 2010 (8) SCC 685** paragraphs 13 and 14 were highlighted by the learned counsel for respondent wherein it has been held that the term 'sufficient cause' has to receive a liberal construction and it must squarely fall within the concept of reasonable time and proper conduct of the concerned party. The purpose of introducing liberal construction normally is to introduce the concept of 'reasonableness' as it is understood in its general connotation. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise and these principles should be adhered to and applied appropriately depending on the facts and circumstances of each case. Once a valuable right is 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 negligence, R.S.A.No.203/2020 18 default or inaction of that party. 11. That was a case in which the learned Single Judge of the High Court of Punjab and Haryana at Chandigarh set aside the concurrent judgment passed by the appellate authority, the rent appellate authority and the rent controller, passing an order of ejectment against the respondents in exercise of the powers conferred under Section 15 of the Haryana Urban Rent (Control of Rent and Eviction) Act, 1973. Petition has been instituted by the landlord against the tenant on the ground of non-payment of rent. Against the judgment of the High Court, leave to appeal was granted by the Apex Court as per the order dated 13.02.2006. During the pendency of that appeal on 28.11.2007, the sole petitioner died. But, no steps were taken to bring on record the legal representatives of the deceased appellant for a considerable period of time on record. Subsequently, on 15.04.2010, I.A.No.01/2010 has been filed along with I.A.No.02/2010 praying for condonation of delay in filing the application to bring the legal heirs on record. It was, in the R.S.A.No.203/2020 19 above circumstances, the Apex Court dismissed I.A.No.2/2010 and consequently, I.A.No.01/2010 and dismissed the appeal as abated. So, the fact situation of that case has no application to the present case. 12. **Lanka Venkateswarlu (D) by LRs. v. State of A.P and Others : 2011 KHC 4165 : 2011 (4) SCC 363** was a case in which applications were filed for condonation of 883 days delay in filing application for setting aside the dismissal order and for condonation of 3703 days delay in bringing on record LRs of deceased respondent and the High Court allowed the applications for condonation of delay and it was challenged before the Apex Court and in paragraph 26 it has been observed by the Apex Court that the concepts such as 'liberal approach', 'justice oriented approach' 'substantial justice' cannot be employed to jettison the substantial law of limitation especially in case where the court concludes that there is no justification for the delay. Learned counsel highlighted the last two sentences in the said paragraph wherein the Apex Court has held that the discretion R.S.A.No.203/2020 20 has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections cannot and should not form the basis of exercising discretionary powers. 13. **University of Delhi v. Union of India and Others : 2020 (13) SCC 745 : 2019 KHC 7261** is a case in which High Court of Delhi declined to condone the delay of 916 days in filing the appeal to challenge the judgment and the learned Single Judge dismissed the writ petition filed by the University of Delhi. Challenge in the writ petition was against the decision dated 12.05.2011 of the Delhi Development Authority who had allowed respondent No.13 M/s.Young Builders (P) Ltd to construct a high rise multistory group housing society in the control zone of Zone C in the University campus without any height restriction. The construction permission was allowed on the plot leased out to the Delhi Metro Rail Corporation by permitting segregation of 2 hectares as a separate entity from the total 3 hectares of land, acquired for the metro station. Paragraphs 20, 23 and 26 were highlighted by the learned counsel wherein it has been held that R.S.A.No.203/2020 21 the consideration of condonation of delay would not depend upon the status of the party namely the Government or the public bodies so as to apply a different yardstick but the ultimate consideration should be to render even – handed justice to the parties. Even in such case the condonation of long delay should not be automatic since the accrued right or the adverse consequence to the opposite party is also to be kept in perspective. 14. **Musthafa P.S. v. Nazeera Beegum and Others : 2020 (6) KHC 474** was further drawn to my attention and paragraphs 5 and 7 were highlighted. That was a case in which Family Court refused to condone the delay in filing the petition to set aside the ex parte decree and refused to set aside the ex parte decree, against which appellant/husband filed the appeal and division bench of this Court, in paragraph 5 discussed the principles of interpretation of sufficient cause appearing in Section 5 of the Limitation Act. It has been held that the adoption of a liberal approach to condone the delay ought not be R.S.A.No.203/2020 22 stretched to the extent of making the provisions of Section 5 of the Limitation Act, 1963 a dead letter or the provisions for ensuring time bound disposal of cases, wholly redundant. Even if the length of delay is long it can be condoned, provided sufficient explanation is given. It is also held that what ought to be the primary concern to the Court is not the length of delay but the sufficiency of explanation. A pedantic and rigid approach to explain every single day's delay is not normally adopted by Court, provided, a reasonable and broad explanation of the delay involved is given. However, a liberal interpretation of the words “sufficient cause” has led to a situation of imprudent drafting, containing canards and nebulous stories. Paragraph 6 of the said decision reads thus: _“6. In this context reference to Damodaran Pillai & Ors. v. South Indian Bank Ltd. (2005 (4) KLT 192 (SC) = (2005) 7 SCC 300) is relevant. In the said decision, it was held that decision that the principles underlying the provisions prescribing limitation are based on public policy aiming at justice, the principle of repose and peace are intended to induce claimants_ R.S.A.No.203/2020 23 _to be prompt in claiming relief. In Lanka Venkateswarlu (dead) By LRs. v. State of Andra Pradesh (2011 (1) KLT OnLine 1222 (SC) = (2011) 4 SCC 363), it was held that the concepts such as “liberal approach”, “justice oriented approach”, “substantial justice” cannot be employed to jettison the substantial law of limitation and also that whilst considering applications for condonation of delay under S.5 of the Limitation Act, the courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law."_ 15. So, no doubt, the discretionary powers to condone the delay has to be exercised with caution and not as a routine manner to jettison the substantial law of limitation so as to defeat any right accrued to the opposite party. 16. Learned counsel for 2[nd] , 29[th] and 57[th] respondents also supported the argument advanced by the counsel for first respondent. The main contention of the learned counsel for the appellants herein is that in the affidavit in support of the petition, the appellant had explained that in the trial stage as well as in R.S.A.No.203/2020 24 the final decree proceedings, the appellants had entrusted the case with Adv.Johnson Abraham to conduct the case and after the passing of the final decree on 24.06.2017, they entrusted him to apply for certified copy to prefer appeal since they are highly aggrieved by the judgment and decree and the counsel assured to apply for certified copy and contact them and after a long time when they contacted, he informed that stamps were called for and plan fee to be remitted for obtaining certified copy and they entrusted the necessary fee with him. In the meantime, the office of the Advocate shifted to Thammanam and he informed them that the certified copy of the judgment and decree obtained by him have been misplaced when the office was shifted. But, in the impugned order, it has been stated by the first appellate court that there was no response from the Advocate inspite of the fact that they entrusted the Advocate to apply for certified copy. As rightly contended by the learned counsel for the appellant, the appellants have no case that the counsel was not responding. But their specific averment in the R.S.A.No.203/2020 25 affidavit is that the Advocate obtained certified copy after a long time and once when they enquired about the position of the application for certified copy, he demanded plan fee in order to obtain the certified copy and that was also entrusted to him and it is after that the Advocate informed that during the shifting of the office, the certified copy of the judgment and decree was misplaced. It has been stated in the impugned order that no documentary evidence has been produced to show that the applications were made in time and no affidavit of the former counsel has also been produced. But, it is to be noted that the appellants stated the name of the Advocate in the affidavit about the entrustment of the case with him during the trial as well as the final decree proceedings. Normally, if the averments are not true, they would not have dared to state the name of the advocate in the affidavit. 17. It is further found by the first appellate court that certified copies of the decree and judgment were delivered to the appellant's counsel on 24.08.2019 but the appeal was filed only R.S.A.No.203/2020 26 on 31.10.2019 and there was no explanation for the delay.Further it is found that it is settled that each days delay has to be explained. But, as has been held in **Esha Bhattacharjee v. Mg.Commit.Of Raghunathpur Nafar Academy : (2013)** **12 SCC 649 : 2013 KHC 4725** , there should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice and the terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective of the fact situation of each case. Lack of bona fides imputable to a party seeking condonation of delay is significant and relevant fact. It is also held therein that strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. 18. In the present case, the approach of the first appellate R.S.A.No.203/2020 27 court in deducting that case of the appellants is that after entrusting the Advocate to apply for certified copy to prefer appeal, there was no response from the Advocate actually is not the state of affairs. It is, appreciating the facts in that angle that the first appellate court found that appellant attributed fault on the former counsel. As I stated earlier, appellants have detailed in the affidavit about the entrustment of the case with the Advocate and conduct of the case during trial as well as final decree by the concerned Advocate and thereafter entrustment to apply for certified copy and on a later point of time, information given by him that the certified copy obtained was misplaced. The name of the Advocate has also been clearly made mention of in the affidavit. But, all those factors have not been keenly evaluated by the first appellate court while dismissing the application for condonation of delay filed by them and further, the finding that after obtaining the certified copy of the judgment and decree by the present Advocate, there is delay of more than two months and odd in filing the appeal and each day's delay has not R.S.A.No.203/2020 28 been explained is also not in consensus with the settled principles of law as held in **State (NCT of Delhi)** referred above. A learned Single Judge of this Court in **Thahakunju @ Thahakutty v. Chandra Sekhara Pillai and Another : 2021 (4) KLJ 525 : 2021 KHC 5854** has held that it is not necessary on the part of the appellant to explain each and every day's delay. 19. Evaluating the facts and circumstances and the way in which the facts in the affidavit were appreciated by the first appellate court, I am of the considered view that the first appellate court ought to have exercised the judicial discretion and ought to have condoned the delay and passed a judgment on merit. Hence the petition to condone the delay filed by the appellant is allowed and the impugned order dismissing I.A.No.7550/2019 in A.S.No.187/2019 is hereby set aside and the appeal is remanded to the first appellate court for consideration of A.S.No.187/2019 on merits. In the result, appeal allowed and the case remanded to the first appellate court for disposal of A.S.No.187/2019 on merits. R.S.A.No.203/2020 29 Since the A.S is of the year 2019, the first appellate court is directed to dispose of the appeal within a period of three months from the date of receipt of a copy of this judgment. **M.R.ANITHA, JUDGE** jsr ## R.S.A.No.203/2020 31