Mohanan, S/o Appukuttan v. Ravindran, S/o Appukuttan and Kuthiravattam Swaroopam Balagopalan Thampan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 16[TH] DAY OF AUGUST 2022 / 25TH SRAVANA, 1944** ## **OP(C) NO. 1649 OF 2011** **AGAINST THE ORDER IN I.A.NO.41/2008 IN A.A.NO.35/2008 OF THE COURT OF THE** ## **APPELLATE AUTHORITY (LR) THRISSUR** ## **PETITIONER:** **MOHANAN, S/O APPUKUTTAN, NADUVULLI KALAM, OZHIVUPARA, PALLASSANA, CHITTUR TALUK, PALAKKAD DISTRICT.** **BY ADV SRI.JACOB SEBASTIAN** ## **RESPONDENTS:** **1 RAVINDRAN, S/O APPUKUTTAN, NADUVULLI KALAM, OZHIVUPARA,, PALLASSANA, CHITTUR TALUK, PALAKKAD DISTRICT, 678101. 2 KUTHIRAVATTAM SWAROOPAM BALAGOPALAN THAMPAN, THULASI SADANAM, PULAPATTA P.O.,, PERINGODE, PALAKKAD DISTRICT-678632.** **BY ADVS. G.HARIHARAN PRAVEEN.H. K.S.SMITHA** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16.08.2022,** **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **O.P.(C)No.1649 of 2011** **2** ## **JUDGMENT** ## **Dated this the 16[th] day of August, 2022** The original petition is filed assailing the order in I.A.No.41/2008 in A.A.No.35/2008 (Ext.P3) of the Court of the Appellate Authority (LR) Thrissur. 2. The concise case of the petitioner in the original petition is that: the 1st respondent – his brother – has filed an appeal before the appellate authority under Section 102 of the Kerala Land Reforms Act (in short 'Act') challenging the order in S.M No.597/2002 of the Land Tribunal, Palakkad, issuing a purchase certificate in favour of the petitioner. The 2nd respondent is the janmi of the property. The appeal was filed with Ext.P1 application, to condone the delay of 2098 days. Even though the petitioner had filed Ext.P2 counter statement to Ext.P1 application and the 1st respondent not letting in any **O.P.(C)No.1649 of 2011** **3** evidence or producing any material to explain the inordinate delay, the appellate authority has in a casual manner, condoned the long delay of 2098 days by the impugned Ext.P3 order. Ext.P3 is perverse and untenable. Hence, the original petition. 3. The 1st respondent has filed a counter affidavit, denying the allegations in the original petition. The 1st respondent has contended that the petitioner had managed to obtain the purchase certificate by perpetrating fraud on him. Immediately on coming to learn about the purchase certificate, the 1st respondent filed the appeal as provided under Section 102 of the Act, as an interested person. The factum regarding issuing the purchase certificate in favour of the petitioner was not disclosed in the earlier proceeding between the parties, as alleged by the petitioner. The attempt of the petitioner is to mislead this Court. The issuance of the disputed purchase **O.P.(C)No.1649 of 2011** **4** certificate is in violation of the procedure under the Act. Hence, the original petition may be dismissed. 4. Heard; Sri.Jacob Sebastian, the learned counsel appearing for the petitioner and Sri.G.Hariharan, the learned counsel appearing for the 1st respondent. 5. The point is whether there is any illegality in Ext.P3 order passed by the appellate authority. 6. During the course of the proceeding, the petitioner filed I.A.No.1/2022, to accept on record the sale deed that was executed in his favour and also the written statement that was filed in O.S.No.49/2003 before the Court of the Subordinate Judge, Palakkad. The application was allowed and Exts.P4 and P5. 7. On a perusal of Ext.P5 written statement, that was filed by the petitioner in O.S.No.49/2003 before the Court of the Subordinate Judge, Palakkad, wherein the 1st respondent was also a party, it is specifically **O.P.(C)No.1649 of 2011** **5** mentioned that the petitioner had obtained the purchase certificate in his favour. Ext.P5 written statement was filed as early as on 22.05.2003. Therefore, the 1st respondent was very well aware that the petitioner had purchased the property as per Ext.P4 sale deed on 15.03.1995 and had stepped into - the shoes of the cultivating tenant – Velayudhan and, thereafter, the purchase certificate was issued in his favour on 04.12.2002 in S.M.Proceedings No.597/2002. Thus, it is too late in the day for the 1 st respondent to now contend that he was unaware of the issuance of the purchase certificate in favour of the petitioner. 8. On an analysis of the impugned Ext.P3 order, it is seen that the appellate authority has gone on a tangent that the 1st respondent was not made a party in the suo motu proceeding and, therefore, he was not aware of the issuance of the purchase certificate. **O.P.(C)No.1649 of 2011** **6** 9. In fact, the petitioner obtained the purchase certificate on the strength of being the purchaser of a property belonging to Velayudhan on 15.03.1995, as per Ext.P4 sale deed, and consequently he was issued with the purchase certificate. This crucial aspect was missed or rather misappreciated by the Tribunal. Therefore, I am of the view that the finding of the appellate Tribunal that the 1st respondent was not a party in the suo motu proceedings is incorrect. In the above factual background, the reason stated by the Tribunal to condone the long delay of 2098 days is unsustainable in law. 10. In a recent decision, 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 adverse **O.P.(C)No.1649 of 2011** **7** 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”. ## 11. 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** .” ## 12. Again in **Maniben Devraj Shah v. Municipal** **Corporation of Brihan Mumbai [(2012) 5 SCC 157] t** he Hon'ble Supreme Court has held thus: **8** ## **O.P.(C)No.1649 of 2011** **“24.** What colour the expression “sufficient cause” would get in the factual matrix of a given case would largely depend on bona fide 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”** . 13. 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 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 **O.P.(C)No.1649 of 2011** **9** 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.”** 14. Therefore, the law is succinctly laid down in the afore cited 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. 15. At the cost of repetition, the specific case of the 1st respondent was that he was totally unaware of the suo motu proceedings that were initiated to issue purchase certificate in favour of the petitioner. As already observed, the petitioner had specifically **O.P.(C)No.1649 of 2011** **10** contended in Ext.P5 written statement, regarding this aspect. Thus, the allegation that the 1st respondent was unaware of the issuance of purchase certificate cannot be accepted for a moment. 16. On a comprehensive consideration of the pleadings and materials on record, particularly the findings rendered by the appellate authority in Ext.P3 order and the specific contention raised by the petitioner in Ext.P5 written statement, I am of the view that the cause shown by the petitioner in Ext.P1 application, to condone the inordinate delay of 2098 days in preferring the appeal was insufficient. There is no sufficient reason or cause to allow the application. The right of the petitioner has crystallised over the passage of six years. If the delay is condoned at this stage, certainly, it would cause substantial prejudice, hardship and injustice to the petitioner. I hold that there is willful latches and negligence on the ## **O.P.(C)No.1649 of 2011** **11** part of the 1st respondent in preferring the appeal with an inordinate delay of 2098 days, which is not condonable. Resultantly, in exercise of the supervisory powers of this Court under Article 227 of the Constitution of India, I set aside Ext.P3 order and dismiss Ext.P1 application. Consequently, A.A.No.35/2008 will stand dismissed. **Sd/C.S.DIAS Judge** NR/16/08/2022 ## **O.P.(C)No.1649 of 2011** ## **12** ## **APPENDIX** |**PETITIONER'S EXHIBITS**|| |---|---| |**EXT.P1**|**A TRUE COPY OF THE I.A.NO.41/2008 IN**| ||**A.A.NO.35/2008 OF THE COURT OF THE APPELLATE**| ||**AUTHORITY (LAND REFORMS) THRISSUR**| |**EXT.P2**|**A TRUE COPY OF THE COUNTER STATEMENT IN**| ||**I.A.NO.41/2008 IN A.A.NO.35/2008 OF THE COURT**| ||**OF THE APPELLATE AUTHORITY (LAND REFORMS)**| ||**THRISSUR**| |**EXT.P3**|**A TRUE COPY OF THE ORDER DATED 28.01.2011 IN**| ||**I.A.NO.41/2008 IN A.A.NO.35/2008 OF THE COURT**| ||**OF THE APPELLATE AUTHORITY (LAND REFORMS)**| ||**THRISSUR**| |**EXT.P4**|**A TRUE COPY OF REGISTERED SALE DEED NUMBER**| ||**635/1995 OF THE SRO, KOLLENGODE DATED**| ||**15.03.1995**| |**EXT.P5**|**A TRUE COPY OF THE WRITTEN STATEMENT OF THE**| ||**FIRST DEFENDANT DATED 22.05.2003 IN**| ||**O.S.NO.49/2003 OF THE SUB COURT, PALAKKAD**| **==> picture [412 x 104] intentionally omitted <==**