Leelamma and Thankamma v. O. Sasidharan

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **TUESDAY, THE 13[TH] DAY OF FEBRUARY 2024 / 24TH MAGHA, 1945** **RSA NO. 67 OF 2020** **AGAINST THE JUDGMENT AND DECREE IN AS NO.135/2011 DATED07.06.2014 OF ADDITIONAL DISTRICT COURT (SPECIAL COURT)-II, KOTTAYAM IN O.S.NO.224/2009 OF MUNSIFF COURT, CHANGANACHERRY** ## **APPELLANTS/RESPONDENTS/DEFENDANTS:** **1 LEELAMMA AGED 58 YEARS D/O.THOMAS, PATHALIL HOUSE, KANGAZHA VILLAGE, CHANGANCHERRY TALUK, KOTTAYAM DISTRICT.** **2 THANKAMMA AGED 90 YEARS W/O.THOMAS, PATHALIL HOUSE, KANGAZHA VILLAGE, CHANGANCHERRY TALUK, KOTTAYAM DISTRICT.** **BY ADV SANIL JOSE** ## **RESPONDENT/APPELLANT/DEFENDANT:** **O.V.SASIDHARAN, S/O.VELUTHAKUNJU, AGED 72, SUJITH BHAVAN, KANGAZHA.P.O., KANGAZHA VILLAGE, CHANGANCHERRY TALUK, KOTTAYAM DISTRICT-686541.** **BY ADVS. M.P MADHAVANKUTTY MATHEW DEVASSI(K/000548/2017) ANANTHAKRISHNAN A. KARTHA(K/001032/2016)** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **R.S.A NO.67 OF 2020** **2** ## **A. BADHARUDEEN, J. --------------------------------------------R.S.A NO.67 OF 2020 and C.M.Appl.No. 1 of 2020 ----------------------------------------------** Dated this the 13[th] day of February, 2024 ## **JUDGMENT/O R D E R** This regular second appeal has been filed under Section 100 r/w Order XLII Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC' for short), challenging dismissal of AS No.135/2011 on the files of the Additional District Court, II (SPL), Kottayam, dated 07.06.2014, which arose out of decree and judgment in OS No.224/2009 on the files of the Munsiff Court, Changanacherry, dated 31.03.2011. 2. Heard the learned counsel for the appellants. Perused available records. 3. C.M.Appl.No.1 of 2020 is a petition filed along with RSA No.67/2020 to condone delay of 1857 days in filing Second Appeal. 4. Though notice served upon the respondents, no appearance. In so far as, condonation of delay of 1857 days, the reason stated is confined in paragraph No.2 of the affidavit, which is extracted as under: **R.S.A NO.67 OF 2020** **3** “2. The above appeal was partly allowed on 7-6-2014 and the certified copy of the judgment and decree was received on 15-7-2014 by our counsel. Thereafter we have entrusted the same counsel to file the Second Appeal against the judgment and decree in A.S.135/2011 and signed the vakalath as well. During the Onam holidays on 2014, our counsel shifted their office to Ernakulam and our file was misplaced. Therefore our counsel could not able to file the appeal and we have in a bonafide belief that the Appeal was preferred by our counsel and is pending consideration of this Hon'ble Court Thereafter during last week of October 2019 we have enquired with the office this Hon'ble court and then only understood that no appeal is pending in the matter. Immediately we contacted our counsel and enquired about the non filing of the appeal and he in turn admit his omission and traced out the file and give the same to us. “ ## 5. Going by the affidavit at par with the argument rendered by the learned counsel for the appellants, it is emphatically clear that the appellants obtained the certified copy of the decree and judgment on 15.07.2014 and thereafter, they failed to file appeal in time. In the affidavit, it is stated that, since the counsel entrusted the file to prefer appeal during 2014 itself, shifted his office to Ernakulam and later file was misplaced and the same is the reason for nonfiling of the appeal in time. The affidavit does not contain any averment regarding the name of the counsel so entrusted and where his place of practice to shift the same to **R.S.A NO.67 OF 2020** **4** Ernakulam. Thus, the affidavit is not justifying any sufficient cause for non filing of appeal in time. In fact 'no sufficient reasons' established to condone the long delay of 1857 days in filing the appeal. In this context, it is apposite to extract Section 5 of the Limitation Act, 1963 and the same is as follows: “5. Extension of prescribed period in certain cases Any appeal or any application, other than an application under any of the provisions or Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.” It is true that “sufficient cause” is the decisive factor while condoning the delay. Though it has been settled that liberal view should be taken while condoning delay, it is equally settled that when the delay sought to be condoned on account of any dilatory tactics without bonafides, with deliberate inaction or negligence, such a concession also is not possible. In this connection, the learned counsel for the plaintiff placed the latest decision of the Apex Court in Majji Sannemma alias Sanyasirao v. Reddy Sridevi and Others reported in AIR 2022 SC 332, wherein the Apex Court considered condonation of delay of 1011 days. In the said **R.S.A NO.67 OF 2020** **5** judgment, the Apex Court relied on the decision in P.Ramachandran v. State of Kerala and Anr. reported in (1997) 7 SCC 556, wherein condonation of delay of 565 days was refused and held in paragraph No.7 to 8 are as under: “7. At this stage, a few decisions of this Court on delay in filing the appeal are referred to and considered as under: 7.1 In the case of Ramlal, Motilal and Chhotelal v.Rewa Coalfields Ltd. (AIR 1962 SC 361), it is observed and held as under:- In construing s. 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decreeholder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decreeholder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chattappan, (1890) J.L.R. 13 Mad. 269, "s. 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant." 7.2 In the case of P.K. Ramachandran v. State of Kerala and Anr. (AIR 1998 SC 2276), while refusing to condone the delay of 565 **R.S.A NO.67 OF 2020** **6** days, it is observed that in the absence of reasonable, satisfactory or even appropriate explanation for seeking condonation of delay, the same is not to be condoned lightly. It is further observed that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. It is further observed that while exercising discretion for condoning the delay, the court has to exercise discretion judiciously. 7.3 In the case of Pundlik Jalam Patil V. Executive Engineer [(2008) 17 SCC 448], it is observed as under: "The laws of limitation are founded on public policy. Statutes of limitation are sometimes described as "statutes of peace". An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. The principle is based on the maxim "interest reipublicae ut sit finis litium", that is, the interest of the State requires that there should be end to litigation but at the same time laws of limitation are a means to ensure private justice suppressing fraud and perjury, quickening diligence and preventing oppression. The object for fixing timelimit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy”. # 7.4 In the case of Basawaraj and Anr V. Special Land Acquisition Officer (AIR 2014 SC 746), it is observed and held by this Court that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case. It is further observed that the expression "sufficient cause" cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party. It is further observed that even though limitation may harshly affect rights of a party but it has to be applied with all its rigour when prescribed by statute. It is further observed that in case a party has acted with negligence, lack of bona **R.S.A NO.67 OF 2020** **7** fides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. It is observed that each application for condonation of delay has to be decided within the framework laid down by this Court. It is further observed that if courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to legislature. 7.5 In the case of Pundlik Jalam Patil (supra), it is observed by this Court that the court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The Courts help those who are vigilant and "do not slumber over their rights". 8. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and considering the averments in the application for condonation of delay, we are of the opinion that as such no explanation much less a sufficient or a satisfactory explanation had been offered by respondent Nos.1 and 2 herein - appellants before the High Court for condonation of huge delay of 1011 days in preferring the Second Appeal. The High Court is not at all justified in exercising its discretion to condone such a huge delay. The High Court has not exercised the discretion judiciously. The reasoning given by the High Court while condoning huge delay of 1011 days is germane. Therefore, the High Court has erred in condoning the huge delay of 1011 days in preferring the appeal by respondent Nos. 1 and 2 herein-original defendants. Impugned order passed by the High Court is unsustainable both, on law as well as on facts.” 6. On perusal of the affidavit in support of this petition, no valid reasons could be found to condone a long delay of 1857 days. Therefore, this petition must fail. Accordingly, C.M.Appl.No.1/2020 stands dismissed. **8** ## **R.S.A NO.67 OF 2020** Since the delay condonation petition is dismissed, the second appeal also stands dismissed as barred by limitation. **Sd/- A. BADHARUDEEN, JUDGE** lsn