Meethale Puthalath Najma v. Puthalath Ahammed Haji

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` WEDNESDAY, THE 20[TH] DAY OF DECEMBER 2023 / 29TH AGRAHAYANA, 1945 RSA NO. 831 OF 2021 ``` ``` AGAINST THE DECREE AND JUDGMENT DATED 28.10.2021 IN A.S.NO.14/2021 ON THE FILES OF THE COURT OF THE SUBORDINATE JUDGE OF VATAKARA AROSE FROM THE DECREE AND JUDGMENT DATED 26.07.2019 IN O.S.NO.223/2016 ON THE FILES OF THE COURT OF THE MUNSIFF OF NADAPURAM ``` ## **`APPELLANT/APPELLANT/DEFENDANT:`** ``` MEETHALE PUTHALATH NAJMA AGED 49 YEARS, D/O ABDULLA PUTHALATH ALSO KNOWN AS KUNHAVULLA, RESIDING AT SINOOJA VILLA, NARIPPATTA AMSOM, CHEEKKONNUMMAL DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT REP BY POWER OF ATTORNEY HOLDER, P.P. ABDUL RAZAK, AGED 60 YEARS, S/O P.I. ALIKOYA, RESIDING AT AL-BAB HOUSE, JOSEPH ROAD, CALICUT-32, KOZHIKODE DISTRICT BY ADVS. SANTHARAM.P REKHA ARAVIND P.G.GOKULNATH ``` ## **`RESPONDENT/RESPONDENT/PLAINTIFF:`** ``` PUTHALATH AHAMMAD HAJI AGED 64 YEARS, S/O ANDRU, NARIPPATTA AMSOM, CHEEKKONNUMMAL DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT-673 506. ``` ``` BY ADVS. P.B.KRISHNAN P.B.SUBRAMANYAN SABU GEORGE MANU VYASAN PETER B.ANUSREE ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON ``` ``` 20.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` R.S.A. No. 831 of 2021 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 20[th] day of December, 2023** This regular second appeal has been filed under order XLII Rule 1 read with Section 100 of the Code of Civil Procedure (“CPC” hereinafter) challenging the decree and judgment in A.S. No.14 of 2021 dated 28.10.2021 on the files of the Court of the Subordinate Judge, Vatakara, arose from decree and judgment in O.S. No.223 of 2016 dated 26.07.2019 on the files of the Court of the Munsiff, Nadapuram. The appellant herein is the defendant and the respondent is the plaintiff in O.S. No. 223 of 2016. 2. Heard the learned counsel for the appellant as well as the learned counsel appearing for the respondent in detail. 3. The parties in this appeal will be referred as plaintiff and defendant relegating their status before the trial court. 4. At the time of admission, my learned predecessor, as per order dated 08.08.2022 admitted this ``` R.S.A. No. 831 of 2021 ``` ``` 3 ``` second appeal by formulating the following substantial question of law: (a) Whether the dismissal of the petition to condone the delay in filing the appeal is legal and proper? 5. Summarizing the controversy involved in this case, the suit was filed by the plaintiff seeking return of advance money on the strength of an agreement dated 02.04.2015 whereby the defendant agreed to convey the plaint schedule property having an extent of two cents in favour of the plaintiff for a total sale consideration of Rs.6,00,000/-, out of which Rs.2,00,000/- was paid as advance and the same was recorded in the agreement itself. For the balance amount, the plaintiff issued cheque dated 22.04.2015 for Rs.4,00,000/- and the same was encashed by the defendant. Even though the defendant received the entire amount of Rs.6,00,000/-, the defendant failed to execute the sale deed. It is in this context, the plaintiff filed the suit for getting back Rs.6,00,000/- paid in tune with the agreement. ``` R.S.A. No. 831 of 2021 ``` ``` 4 ``` 6. The defendant filed written statement denying execution of the sale agreement in writing and contended that there was an oral agreement to sell the property having an extent of three cents for an amount of Rs.15,00,000/-. The further contention raised by the defendant was that the plaintiff failed to arrange Rs.4,00,000/- as agreed and accordingly, he was prepared to issue post dated cheque for the said amount and on accepting the cheque and Rs.11,00,000/- as cash, the defendant executed document in respect of three cents of property in favour of the plaintiff on 02.04.2015. Later the cheque also was encashed. 7. It is evident from the trial court judgment that the case was listed for trial on 03.07.2018 after raising appropriate issues. The defendant did not turn up on that day. Hence, the suit was decreed as ex-parte on 09.07.2018. Later, the defendant filed RPIA No.184/2019 to set aside the the ex-parte decree along with a petition to condone delay of 44 days. The petition stood allowed and on 24.06.2019 the suit was restored to file. Again it was ``` R.S.A. No. 831 of 2021 ``` ``` 5 ``` listed on 04.07.2019. On that day, the defendant reported that there was chance of settlement and sought adjournment for two weeks and the case stood adjourned to 16.07.2019. On that date, the defendant did not turn up and again ex-parte decree was passed. 8. Later, the defendant filed two petitions to set aside ex-parte decree dated 16.07.2019 along with petition to condone delay of 44 days. Both those petitions were dismissed on 09.01.2020. 9. After dismissal of the above petitions, A.S. No.14/2021 was filed before the Court of the Subordinate Judge, Vadakara along with I.A. No.1/2021 to condone delay of 634 days in filing the appeal. The reason stated by the defendant to condone long delay of 634 days is medication for disc prolapse. 10. The plaintiff filed objection and highlighted the dilatory tactics played by the defendant. 11. The learned Sub Judge while dismissing the petition for condonation of delay, in paragraph No.4 of the order in I.A. No.1/2021 dated 28.10.2021, observed as ``` R.S.A. No. 831 of 2021 ``` ``` 6 ``` ## under: The above appeal is against the decree for money. Approach of the petitioner found to be harassment towards the respondent. Now the petitioner is abroad. She has executed a Power of Attorney on 10/05/21 from Qatar. On which date she left India was not stated in the petition. Suit was decreed on 26/07/2019. There is no proper explanation for not preferring appeal before lock down in March, 2020. Petitioner says that she left for Qatar on the bonafide belief that the suit will be disposed of in her favour. Without attending the court or without giving instruction to her counsel, she left India and expected a verdict in her favour. This type of tactics cannot be allowed by the court. Whether any attempt was made by the petitioner to set aside exparte decree before going to Qatar was not stated in the affidavit to this petition. 12. In so far as condonation of delay in terms of Section 5 of the Limitation Act, 1963, is concerned, ``` R.S.A. No. 831 of 2021 ``` ``` 7 ``` sufficient cause is the reason to do so. Law regarding sufficient cause contemplated under Section 5 of the Limitation Act is well settled. 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.” 13. 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 bona fides, 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 ``` R.S.A. No. 831 of 2021 ``` ``` 8 ``` the Apex Court reported in [AIR 2022 SC 332], **Majji Sannemma alias Sanyasirao v. Reddy Sridevi and Others** , wherein the Apex Court considered condonation of delay of 1011 days. In the said judgment, the Apex Court relied on the decision reported in [(1997) 7 SCC 556], **P.Ramachandran v. State of Kerala and Anr.** wherein condonation of delay of 565 days was refused and held in paragraph Nos.7 and 8 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 decree-holder has obtained a benefit under the law of limitation to treat ``` R.S.A. No. 831 of 2021 ``` ``` 9 ``` 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 days, it is observed that in the absence ``` R.S.A. No. 831 of 2021 ``` ``` 10 ``` 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, ``` R.S.A. No. 831 of 2021 ``` ``` 11 ``` 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 fides or there is inaction then there cannot be any justified ground for condoning the delay ``` R.S.A. No. 831 of 2021 ``` ``` 12 ``` 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 ``` R.S.A. No. 831 of 2021 ``` ``` 13 ``` 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.” 14. In the instant case, the suit was filed as early in the year 2016 and the defendant resisted the suit by filing affidavit till 03.07.2018, when the matter was listed for trial. The defendant did not turn up on that day. Hence, the suit was decreed as ex-parte on 09.07.2018. Later, the defendant filed RPIA No.184/2019 to set aside the the exparte decree along with a petition to condone delay of 44 days. The same were allowed and on 24.06.2019 the suit was restored to file. Again it was listed on 04.07.2019. On that day, the defendant reported that there was a chance of settlement and sought adjournment for two weeks. The ``` R.S.A. No. 831 of 2021 ``` ``` 14 ``` case stood adjourned to 16.07.2019. On that date, the defendant did not turn up and against ex-parte decree was passed. Later also the defendant filed two petitions to set aside ex-parte decree dated 16.07.2019 along with petition to condone delay of 44 days. Both these petitions were dismissed on 19.01.2020. 15. It is discernible that the defendant was set exparte twice by the trial court and at the first instance exparte decree was set aside. But the the trial court disallowed the prayer to set aside the ex-parte decree moved for the second time along with the delay petition. At this juncture, the first appeal was filed before the first Appellate Court. 16. Going by the affidavit in support of the petition along with finding of the trial court, it is emphatically clear that the medical ailment proposed as the reason for delay not at all established by any medical evidence. It is discernible from the records that after setting aside the exparte decree for the second time, when the case was posted for evidence, the defendant went to Qatar on the ``` R.S.A. No. 831 of 2021 ``` ``` 15 ``` belief that verdict would be in her favour. In fact, dilatory tactics on the part of the defendant throughout could be foreseen to avoid disposal of the suit on merits. In the written statement itself the defendant admitted receipt of money by cheque and encashment of the same, though for different transaction. 17. On appraisal of the materials before this Court, no sufficient reason pointed out to condone delay of 634 days in filing the first appeal and the Appellate Court rightly dismissed the petition taking note of the facts and circumstances discussed herein above. 18. Therefore, the substantial question of law answered holding that the dismissal of the petition to condone the delay in filing the appeal is legal and proper. Therefore, the order of dismissal of I.A.No.1/2021 and the dismissal of A.S. No.14 of 2021 as time barred, do not require any interference. 19. In the result, this regular second appeal fails and is dismissed accordingly. Consequently, the decree and judgment under challenge stand confirmed. ``` R.S.A. No. 831 of 2021 ``` ``` 16 ``` All interlocutory applications also stand dismissed and the interim stay in executing the decree shall stands vacated. **Sd/-** **A. BADHARUDEEN JUDGE** SK ``` R.S.A. No. 831 of 2021 ``` ``` 17 ``` ## **`APPENDIX OF RSA 831/2021`** ``` PETITIONER’S ANNEXURES : Annexure 1CERTIFIED COPY OF ORDER DATED 28.10.2021 IN IA NO 1/2021 IN AS NO 14/2021 ON THE FILES OF THE SUB COURT, VATAKARA ```