Madhu and Sarojam @ Krishnakumari v. Krishnankutty

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **TUESDAY, THE 16TH DAY OF JANUARY 2018 / 26TH POUSHA, 1939** ## **RSA.No. 933 of 2015** **AGAINST THE JUDGMENT AND DECREE DATED 12.3.2015 IN A.S.36/2012 ON THE FILE OF THE COURT OF SUB JUDGE, NEYYATINKARA** **AGAINST THE JUDGMENT AND DECREE DATED 19.07.2011 IN O.S.75/1992 ON THE FILE OF THE II ADDITIONAL MUNSIFF COURT, NEYYATTINKARA** ## **APPELLANTS/APPELLANTS/DEFENDANTS** - **1 MADHU, AGED 57 YEARS, S/O.PADMANABHAN NADAR, VALIYAVILA PUTHEN VEEDU, KANJIRAMKULAM DESOM, KANJIRAMKULAM VILLAGE, THIRUVANANTHAPURAM DISTRICT, FROM PANAYARATHALAVILAKATHU PUTHEN VEEDU, KADAVATTARAM DESOM, NEYYATTINKARA VILLAGE, THIRUVANANTHAPURAM - 695121** - **2 SAROJAM @ KRISHNAKUMARI, AGED 57 YEARS W/O.MADHU, VALIYAVILA PUTHEN VEEDU, KANJIRAMKULAM DESOM, KANJIRAMKULAM VILLAGE, THIRUVANANTHAPURAM DISTRICT, FROM PANAYARATHALAVILAKATHU PUTHEN VEEDU, KADAVATTARAM DESOM, NEYYATTINKARA VILLAGE, THIRUVANANTHAPURAM-695121** **BY ADVS.SRI.RAM MOHAN.G. SRI.G.P.SHINOD SRI.MANU V. SRI.GOVIND PADMANAABHAN SRI.AJIT G.ANJARLEKAR** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **KRISHNANKUTTY, AGED 59 YEARS S/O.PADMANABHAN, PANAYARATHALA VILAKAM, KADAVATTARAM DESOM, NEYYATTINKARA TALUK, THIRUVANANTHPAURAM DISTRICT, FROM "GAYATHRI", KUTTAPPANA, MARUTHATHOOR, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM 695121** **R1 BY ADV. SRI.G.S.REGHUNATH** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **A. HARIPRASAD, J. ------------------------------R.S.A.No.933 of 2015** ## **---------------------------------------------Dated this the 16[th ] day of January, 2018** ## **JUDGMENT** Heard the learned counsel for the appellants/defendants and respondent/plaintiff in O.S.No.75 of 1992 on the file of the Second Additional Munsiff's Court, Neyyattinkara. 2. The suit is one for declaration of title and setting aside Ext.A5, to the extent it stands in the name of the 1[st] appellant, and for other reliefs. 3. Short facts are as follows: Larger property, having an extent of 21½ cents with a building thereon originally belonged to the plaintiff's father Padmanabhan Nadar. Out of the said extent, 15 cents was transferred to his daughter and son-in-law, as per Ext.A1 settlement deed. The plaintiff and 1[st] defendant were residing along with their father in the building situated in the plaint schedule property. In the year 1980, the plaintiff went to Saudi Arabia in pursuit of a job. He learned that his sister and brother- **RSA No.933/2015** **2** in-law decided to sell their property given to them by the his father. As the plaintiff intended to purchase the property, he entrusted the matter to the 1[st] appellant (1[st] defendant). While the plaintiff was abroad, the 1[st] defendant sent a letter on 9.8.1984, stating that he needed to Rs.15,000/- for purchasing the property in the name of the plaintiff and also for getting electric connection to the family house. It is the contention of the plaintiff that the 1[st] defendant promised that the property would be purchased in the name of the plaintiff. For the said purpose, plaintiff issued one cheque for Rs.6,350/- to the 1[st] defendant and another cheque for Rs.8,500/-. The cheques were encashed by the 1[st] defendant. Again he demanded Rs.10,000/for related expenses. The plaintiff did not send any further amount as he had already sent sufficient amounts for purchase of the property. Later, the 1[st] defendant purchased the property in the joint names of the plaintiff and himself, on 6.2.1985, as per Ext.A5. The consideration shown in the document is Rs.3,000/-. After purchasing the property, the 1[st] defendant went abroad. He never disclosed the fact to the plaintiff that it was purchased in their joint names. In the year 1990, when the plaintiff **RSA No.933/2015** **3** returned from gulf, he wanted the 2[nd] defendant to handover title deed of the property. But the 2[nd] defendant refused to handover the same. On subsequent enquiry, he got information that the property was purchased in their joint names. According to him, the 1[st] defendant acted fraudulently. A notice was issued to the 1[st] defendant asking him to execute the document in the name of the plaintiff. Even though the 1[st] defendant expressed his willingness to execute the document, later he refused to do so. Hence, the suit. 4. The 1[st] defendant filed a written statement denying the contentions in the plaint. Out of 21½ cents belonged to their father, 3 cents of property was sold to one Thankachan and 5 cents to one Mani. Balance extent of 13½ cents with a building thereon were the property involved in Ext.A5. At the time of the marriage of plaintiff's sister Kamalamma, the plaintiff agreed to give Rs.10,000/-. Since there was no amount given at that time, it was decided to execute Ext.A1 in the name of Kamalamma and her husband. It was decided to execute a re-conveyance, when the amount was given to them. According to the 1[st] defendant, he also spent money for household affairs. On 9.8.1984, **RSA No.933/2015** **4** Rs.6,000/- was demanded from the plaintiff for electrifying the family house. On various occasions, the plaintiff had sent money to the 1[st] defendant for other purposes. The suit is barred by limitation. The specific entrustment of money for purchasing property in the name of the plaintiff, is a false story. Hence the suit was liable to be dismissed. 5. The case has a chequered career. Originally the suit was dismissed, against which, the plaintiff preferred an appeal before the lower appellate court. The appeal was also dismissed. The judgment and decree of the lower appellate court was taken in a second appeal before this Court. A learned Single Judge, while disposing S.A.No.364 of 1999, as per judgment dated 19.01.2011, remanded the case with following directions: Accordingly, this appeal is allowed. The judgment and the decree of the courts below are set aside and the suit is remanded to the trial court for fresh disposal in accordance with law and in the light of what is stated herein above. The parties will appear before the trial court on 28.02.2011. They will be free to adduce further evidence if they so choose. Being a suit of the year 1992, the trial court may make every endeavour to dispose of the suit as **RSA No.933/2015** **5** expeditiously as possible, at any rate, within nine months from the date of the parties. 6. After the remand, the parties appeared and contested the case. The trial court, as per judgment dated 19.7.2011, decreed the suit. Dissatisfied with the decree, the appellants preferred A.S.No.36 of 2012 before the Court of Sub Judge, Neyyattinkara, with a petition (I.A.No.627/2012) under Section 5 of the Limitation Act to condone delay of 225 days in preferring the appeal. Learned Subordinate Judge found that the appellants did not show any sufficient cause to condone the delay. Hence, the application under Section 5 of the Limitation Act was dismissed and consequently, the appeal was also dismissed. Aggrieved by the dismissal of the appeal, the second appeal has been preferred. 7. Learned counsel for the appellants contended that the lower appellate court failed to take note of the serious contentions raised by the appellants in the appeal and on technical grounds, the delay condonation petition was dismissed. According to him, there is a meritorious matter to be decided in the appeal. Per contra, learned counsel for the plaintiff/1[st] **RSA No.933/2015** **6** respondent would contend that the attempt of the appellants is to prolong a litigation started in the year 1992. It is also contended that the appellants were fully aware of the proceedings and they did not prefer the appeal in time just to prolong the proceedings and cause difficulties to the plaintiff. 8. The question arising before this Court is whether the lower appellate court justified in finding that no sufficient cause was shown to condone delay of 225 days in preferring the first appeal. 9. I need not mention any precedent to fortify the point that it is not the number of days that is relevant in a petition for condonation of delay. How the petitioner explains the delay and whether the petitioner shows sufficient cause to condone the delay are the crucial questions. 10. The averments in the application shows the following facts: The first round of litigation up to this Court was seriously fought between the parties. According to the averments in the affidavit, the 1[st] appellant sustained injuries on 21.2.2005 as some aggressors attacked him with lethal weapons. It is also submitted that one of his brothers died in the incident and the **RSA No.933/2015** **7** Police has registered a case and the matter is now pending investigation. It is his case that on account of the incident, he has lost agility of his upper limbs. The case was remanded by this Court to the court below with a direction that the parties should appear before the trial court on 19.1.2011. It is his contention that he did not get any intimation regarding the order of remand and he could not participate in the second round of trial. Grievance of the appellants is that the trial court considered only the contentions of the plaintiff and decreed the suit on 19.7.2011. On 12.3.2012, they submitted an application for certified copy of the judgment and decree. 247 days' delay occurred in getting a certified copy and 8 days' delay for preparing the appeal. After deducting the permitted period, the delay in filing the appeal is 225 days. It is submitted that there is no intentional latches on their part. Earlier, an application under Order 9 Rule 13 CPC was filed to set aside the exparte decree, which was dismissed on 19.3.2012. 11. These contentions were opposed by the plaintiff. The assertion in the affidavit that they were not aware of the remand and they did not participate in the trial after remand, are false. **RSA No.933/2015** **8** It is evident from the judgment that the lawyer, who was engaged by the appellants, argued the matter before the court below and by repelling the arguments, the suit was decreed. The decree passed by the trial court was not an exparte decree and therefore, the application under Order 9 Rule 13 CPC was rightly dismissed. Contention raised in the affidavit that there was an amicable arrangement between the parties on 4.3.2011 by executing an agreement that the property and the improvements thereon would be sold and the proceeds would be shared equally between them, is incorrect. No such agreement was executed with an intention to sell the property. The reasons stated for condonation of delay are incorrect and the application is liable to be dismissed. 12. The court below, in the impugned order, repelled the contention of the appellants that they came to know of the proceedings only at the stage of execution. Certified copy of B-diary proceedings in O.S.No.75 of 1992 was produced before the lower appellate court as Ext.B1, revealing that there was appearance for both the parties after remand. The proceedings in Ext.B2 would show that a lawyer for the appellants had **RSA No.933/2015** **9** appeared and contested the case. Mainly for this reason, the court below rejected the petition. 13. Learned counsel for the appellants contended that he had to stay away from the property due to a fatal attack on him and he was residing far away, after 2005. No letters and notices were issued in the original address shown in the plaint and other proceedings also did not reach him. It is true that it is the responsibility of the party going by Order 7 Rule 14(a) CPC to furnish the changed address during the course of proceedings. Admittedly, the appellants had not done so. Therefore, he cannot take shelter under that contention. 14. Learned counsel for the respondents, relying on merits of the case, contended that the appellants were callously and negligently stayed away from the Court to prolong the litigation. Per contra, learned counsel for the appellants contended that there was no benefit derived by them by delaying the process. It is submitted by both sides that after the decree, the property was taken delivery of by the plaintiff, in the year 2012. This fact is undisputed. According to the appellants, they came to know of the proceedings only when the property was **RSA No.933/2015** **10** delivered to the plaintiff in the execution proceedings. 15. Even though both sides have elaborately argued on the merits of the case, going by the line of decisions by the apex court that merit of the matter shall not be considered in a petition for condonation of delay, I am not inclined to make any observation regarding the merit. The question is whether the delay has been explained properly and for that limited purpose, merit of the matter can be considered. According to the plaintiff, money was entrusted to the defendant for a specific purpose of purchasing the property in his name and in defiance of plaintiff's direction, he purchased the property in their joint names with a malafide intention. It is therefore contended that Section 10 of the Limitation Act applies to the case and the suit is not barred. Per contra, learned counsel for the appellants would contend that there was no specific trust created and as part of usual transactions, monies were sent on various occasions by the plaintiff and also by the defendant to the plaintiff, when the former was abroad; and in the absence of a specific trust, Section 10 of the Limitation Act did not apply to the case. So much so, the suit is barred by limitation. All these factual **RSA No.933/2015** **11** questions need to be resolved by consideration of the matters on merit. Admittedly, the lower appellate court, by a cryptic order, has only considered the fact that there was a contest before the trial court. It is therefore found that the contentions of the appellants were not sustainable. 16. The expression 'sufficient cause' occurring in Section 5 of the Limitation Act has to be construed liberally, is beyond any pale of dispute. Learned counsel, relying on **Balwant Singh v. Jagdish Singh [AIR 2010 SC 3043]** contended that the expression 'sufficient cause' that has to be liberally construed , it must squarely fall within the concept of reasonable time and proper conduct of the concerned property. The principle reads thus: We may state that even if the term `sufficient cause' has to receive liberal construction, 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 **RSA No.933/2015** **12** arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right, as 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, 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. The application filed by the applicants lack in details. Even the averments made are not correct and ex-facie lack bona fide. The explanation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. If it does not specify any of the enunciated ingredients of judicial pronouncements, then the application should be dismissed. 17. The affidavit filed in support of the application for condonation of delay shows reasons apart from the fact that the **RSA No.933/2015** **13** appellants tried to get the decree set aside by filing an application under Order 9 Rule 13 CPC. The court below, in the impugned order, has not mentioned any valid reason to dismiss the application in a summary manner. As observed earlier, I do not intend to pass any comment on the merit of the matter as it may influence the mind of the court below. 18. Having regard to the facts and circumstances, I am of the view that the court below should have allowed the petition on terms, even if it found latches on the part of the appellants, so that the matter can attain finality on merits. It is true that the litigation commenced in the year 1992 and it has to be expeditiously disposed. Having regard to the facts and circumstances, following directions are issued: The appellants shall pay a cost of Rs.10,000/- to the plaintiff/respondent, within a period of two weeks from today and produce the memo before the court below. In that event, the delay of 225 days in filing the appeal will stand set aside. If that be so, the lower appellate court shall hear both the parties and dispose of the appeal on merits, on or before 13.4.2018. The **RSA No.933/2015** **14** parties shall appear before the court below on 29.1.2018. If the plaintiff or his counsel refuses to accept the cost, the appellants shall deposit the cost before the court below in two weeks. If the cost is not deposited in time, the appeal will stand dismissed. All pending interlocutory applications will stand dismissed. JV Sd/- **A. HARIPRASAD JUDGE**