Meera Umma Yacoob v. Syamji and Shyji

OP(C) NO. 2093 OF 2018 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 2[ND] DAY OF NOVEMBER 2022 / 11TH KARTHIKA, 1944 OP(C) NO. 2093 OF 2018** **AGAINST THE ORDER/JUDGMENT IN CMA 3/2016 OF ADDITIONAL** **DISTRICT COURT & SESSIONS COURT - II, PATHANAMTHITTA OS 5/1998 OF SUB COURT / COMMERCIAL COURT, PATHANAMTHITTA PETITIONER/S:** MEERA UMMA YACOOB, W/O.YACOOB, AGED 67 YEARS, RESIDING AT PUNNOOPARAMBIL, KARUVATTA VILLAGE, KARUVATTA MURI, TALUK, ALAPPUZHA, PIN - 690 517,ALAPPUZHA BY ADVS. SANKARJEE V.N. MADHUSUDANAN V.N. ## **RESPONDENT/S:** 1 SYAMJI, AGED 37 YEARS, RESIDING AT SYAM BHAVAN, KOODAL VILLAGE, KULATHUMON, ADOOR TALUK, PATHANAMTHITTA – 689645, PATHANAMTHITTA 2 SHYJI, AGED 35 YEARS, RESIDING AT SYAM BHAVAN, DO, DO BY ADVS. D.KISHORE R.MURALEEKRISHNAN (MALAKKARA) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO. 2093 OF 2018 2 ## **JUDGMENT** Aggrieved by Ext.P11 judgment passed in CMA No.3/2016 of the Court of the Additional District Court, Pathanamthitta (Appellate Court) and Exts.P7 and P8 orders passed in I.A.Nos.1365/2014 and 1366/2014 in O.S.No.5/1998 of the Court of the Subordinate Judge, Pathanamthitta (Trial Court), the plaintiff in the suit has filed the original petition. The respondents in the original petition are the defendants 2 and 3. 2. The concise facts, relevant for the determination of the original petition, are: the petitioner had filed the suit against the respondents and their mother late Jagadamma for declaration of title and a decree for recovery of possession of the plaint schedule property. Pending the suit, the petitioner's husband died. He was looking after to the litigation. The suit was resisted by the respondents through Ext.P2 written statement. The petitioner is an illiterate lady. The suit happened to be 3 OP(C) NO. 2093 OF 2018 dismissed for default on 08.10.2003. The petitioner came to learn of the dismissal only on 18.12.2014. The petitioner filed I.A.No.1365/2014 (Ext.P3) under Order 9 Rule 9 of the Code of Civil Procedure (in short, “Code”) to restore the suit and I.A.No.1366/2014 (Ext.P4) to condone the delay of 4060 days in filing Ext.P3 application. The respondents objected to Exts.P3 and P4 applications by filing Exts.P5 and P6 written objections. By the impugned Exts.P7 and P8 orders, the Trial Court dismissed Exts.P3 and P4 applications. Challenging Exts.P7 and P8 orders, the petitioner filed CMA No.3/2016 before the Appellate Court. The Appellate Court, by the impugned Ext.P11 judgment, dismissed the appeal. Ext.P7, P8 and Ext.P11 are palpably wrong and untenable. Hence, the original petition. 3. Heard; Dr.V.NSankarjee, the learned counsel appearing for the petitioner and Sri.D.Kishore, the learned counsel appearing for the respondents. 4. The point is whether there is any illegality in OP(C) NO. 2093 OF 2018 4 Exts.P7 and P8 orders and Ext.P11 judgment. 5. It was the petitioner who filed O.S.No.5/1998 against the respondents for declaration of title and recovery of possession. It is conceded that the suit was dismissed on 08.10.2003. The petitioner contends that the entire litigation was looked after by her husband, who died on 07.11.2002. Admittedly, Ext.P3 application to restore the suit was filed only on 18.12.2014 with an application to condone the delay of 4060 days (11 years). The courts below by the impugned Exts.P7 and P8 orders, and Ext.P11 judgment have concurrently found that reasons stated by the petitioner were insufficient to condone the inordinate delay of 4060 days. 6. A three Judge Bench of the Hon'ble Supreme Court in **University of Delhi v. Union of India and others** [2019 KHC 7261] has held thus: ## “20.xxxxxxxxxxxxxxxxxx Even in such case the condonation of long delay should not be automatic since the accrued right or the OP(C) NO. 2093 OF 2018 5 adverse consequence to the opposite party is also to be kept in perspective. **In that background while considering condonation of delay, the routine explanation would not be enough but it should be in the nature of indicating “sufficient cause” to justify the delay which will depend on the backdrop of each case and will have to be weighed carefully by the Courts based on the fact situation.** xxxxxxxxxx”. ## 7. In **Pandlik Talam Patil vs Talgaou Medium Project** [(2008) 17 SCC 448], the Hon'ble Supreme Court has observed as follows: “17. …..The evidence on record suggests neglect of its own right for long time in preferring appeals. **The court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The court helps those who are vigilant and 'do not slumber over their rights.”** “29. It needs no restatement at our hands that the object for fixing time limit for litigation is based on public policy fixing a life span 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.”** OP(C) NO. 2093 OF 2018 6 8. Again in Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai [(2012) 5 SCC 157] the Hon'ble Supreme Court has held thus: “24. What colour the expression “sufficient cause” would get in the factual matrix of a given case would largely depend on bonafide 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 application 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”.** 9. The above position has been reiterated by the Hon'ble Supreme Court in **Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and Others** [(2013) 12 SCC 649] by holding that: **21.8 (viii) There is a distinction between inordinate delay and a delay of short duration of few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict** OP(C) NO. 2093 OF 2018 7 ## **approach whereas the second calls for a liberal delineation.** 21.9 (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. **21.10(x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.”** 10. Therefore, the law is succinctly laid in the aforecited precedents, that while considering an application to condone the delay, a routine explanation is not enough in the nature of indicating sufficient cause to justify the delay, which will depend on the back drop of each issue and which have to be weighed carefully by the courts based on the fact situation and in the case of inordinate delay, a strict approach is warranted as delay defeats equity. OP(C) NO. 2093 OF 2018 8 11. On an analysis of the pleadings and materials on record, and the explanation put-forth by the petitioner in Exts.P3 and P4 applications, that it was her husband who was conducting the suit cannot be accepted because the suit was filed by the petitioner. It is hard to believe that she was unaware of the suit when she herself has sought a decree for recovery of possession. Even otherwise, it was her bounden duty to enquire about the status of the suit, after the death of her husband. Furthermore, it is evident from the materials on record that the petitioner's counsel had filed I.A.No.810/2013 to adjourn the trial of the suit. It cannot be assumed for a moment that, it was without the instructions of the petitioner that the application was filed. At any rate, it is hard for this Court to perceive that the petitioner was unaware of the dismissal of the suit. The inordinate delay of 11 years has crystallized the right of the respondents, who cannot be put to prejudice due to the deep slumber and negligence of the petitioner for more than a decade. The reasons OP(C) NO. 2093 OF 2018 9 stated in the applications are nothing but a tailor-made tale, which does not inspire this Court. On a comprehensive consideration of the pleadings and materials on record and the finding rendered by the Courts below in Exts.P7 and P8 orders and Ext.P11 judgment, I am of the definite view that the courts below have not exceeded their powers of authority, warranting interference by this Court under Article 227 of the Constitution of India. The original petition is meritless and is dismissed. **==> picture [25 x 11] intentionally omitted <==** ## **C.S.DIAS, JUDGE** rkc/02.11.22 OP(C) NO. 2093 OF 2018 10 ## **APPENDIX OF OP(C) 2093/2018** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF TRUE COPY OF THE PLAINT DATED 18/12/1997 IN IS OS NO.5/1998 ON THE FILE OF THE SUB COURT, PATHANAMTHITTA. EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT DATED 29/3/2001 IN OS NO.5/1998 ON THE FILE OF THE SUB COURT, PATHANAMTHITTA. EXHIBIT P3 TRUE COPY OF THE PETITION IA NO.1365/2014 IN OS NO.5/1998. EXHIBIT P4 TRUE COPY OF THE PETITION IA NO.1366/2014 IN OS NO.5/1998. EXHIBIT P5 TRUE COPY OF OBJECTIONS IN IA NO.1365/2014 IN OS NO.5/1998. EXHIBIT P6 TRUE COPY OF OBJECTIONS IN IA NO.1366/2014 IN OS NO.5/1998. EXHIBIT P7 TRUE COPY OF THE ORDER DATED 6/2/2016 IN IA NO.1365/2014 IN OS NO.5/1998. EXHIBIT P8 TRUE COPY OF THE ORDER DATED 6/2/2016 IN IA NO.1366/2014 IN OS NO.5/1998. EXHIBIT P9 TRUE COPY OF THE MEMORANDUM OF APPEAL IN CMA NO.3/2016 ON THE FILE OF THE ADDITIONAL DISTRICT COURT-II, PATHANAMTHITTA. EXHIBIT P10 TRUE COPY OF THE OBJECTIONS FILED BY THE RESPONDENTS DATED 21/7/2017 IN EXT.P9 APPEAL. EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED 30/6/2018 IN CMA NO.3/2017. EXHIBIT P12 CERTIFIED COPY OF IA.NO.810/2003 IN OP(C) NO. 2093 OF 2018 **==> picture [12 x 9] intentionally omitted <==** O.S.NO.5/1998 OF THE SUB COURT, PATHANAMTHITTA. EXHIBIT P13 CERTIFIED COPY OF THE ORDER DATED 08/10/2003 IN IA.NO.810/2003 IN O.S.NO.5/1998 OF THE SUB COURT, PATHANAMTHITTA.