Muhammed Riyas and Others v Union of India

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 8[TH] DAY OF MARCH 2023 / 17TH PHALGUNA, 1944** **RSA NO. 557 OF 2022** **AGAINST THE JUDGMENT AND DECREE DATED 09.11.2017 IN A.S. NO.116/2014 OF ADDITIONAL DISTRICT & SESSIONS COURT, VADAKARA AGAINST THE JUDGMENT AND DECREE DATED 31.03.2014 IN O.S. NO.215/2011 OF SUB COURT, VADAKARA** ## **APPELLANTS/APPELLANTS/DEFENDANTS:** 1 MUHAMMED RIYAS, S/O ABDUL KHADER, AGED 42 YEARS GRACE, PUTHUKKUDI PARAMBA, KOTTOOLI (PO), CALICUT-673001 2 SASI K M, S/O KANARAN AGED 47 YEARS MANIKOTH KUNNUMMAL KAYAKKODI, KUTTIADI, KOZHIKODE-673508 3 ASOKAN P, AGED 47 YEARS, S/O KORAN, PARAYAR KANDI H, KEEZHAL P O, VATAKARA-673104 4 SHAJI K S, S/O BALAN AGED 45 YEARS NEELANKANADAYIL, CHOMBALA P O, VATAKARA-673308 5 RASHEED KUNNUMMAL, S/O MARAKKAR AGED 44 YEARS, ANCHAPPURAYIL, KUNNUMMAL, KUNDUTHODU, KAVILUMPARA-673513 6 ANIL, S/O KANNAN AGED 49 YEARS THAYYULLATHIL, IRINGANNOOR P O, TUNERI-673505 7 PRADEEPAN K K., S/O KELAPPAN AGED 47 YEARS KIZHAKKE KUTTIYIL, MANTHATATHUR, PUTHUPANAM, VATAKARA-673105 8 MANOJAN K M, S/O KANARAN AGED 47 YEARS C.M.Appln. No.1 of 2022 in R.S.A. No.557 of 2022 & R.S.A No.557 of 2022 2 KOROTH MEETHAL(H), PALAYADNADA P O, IRINGAL - 673521 9 PTK RAJEEVAN, S/O KANARAN AGED 48 YEARS PUNATHUM THAZHE KUNIYIL, VALLYAD P O, VILLIAPPALLI-673542 10 AJILESH, S/O ANANDAN AGED 40 YEARS THAVARAPPARAMBATH, KOOTTANGARAM, MAYYANNUR, VATAKARA 11 SAJITH KUMAR, S/O NANU AGED 45 YEARS NADAKKAL, CHOLAM VAYAL, VATAKARA-673101 BY ADVS. K.S.ARUN KUMAR MINTU CHERIYAN VIJAY SANKAR V.H. RAJEE P MATHEWS BINDU MOHAN SRUTHY UNNIKRISHNAN AMRUTHA P S AISWARYA E J VETTIKOMPIL ## **RESPONDENT/RESPONDENT/PLAINTIFF:** UNION OF INDIA REPRESENTED BY POST MASTER, K SREENIVASAN S/O KRISHNAN NAIR AGED 65 YEARS, GEETHA, KOTTOOLI P O, PIN - 673016 BY ADVS. MANU S.- DSG OF INDIA MINI GOPINATH -CGC . ## **THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON** **08.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** C.M.Appln. No.1 of 2022 in R.S.A. No.557 of 2022 & R.S.A No.557 of 2022 3 **M.R.ANITHA, J.** **==> picture [37 x 32] intentionally omitted <==** **---------------------------------------C.M.Appln. No.1 of 2022 in R.S.A. No.557 of 2022 & R.S.A No.557 of 2022** **-----------------------------------------------** ## **ORDER & JUDGMENT** ## **Dated this the 08[th ] day of March, 2023** Petition to condone the delay of 892 days in filing the above R.S.A. The 1st appellant/1st petitioner filed supporting affidavit for and on behalf of the other appellants contending that the judgment and decree in A.S.No.116/2014 has been pronounced on 09.11.2017, by which the 1[st] Appellate Court dismissed the appeal confirming the judgment and decree passed by the Sub Court, Vadakara in O.S. No.215/2011. The file was entrusted with the Advocate at Ernakulam in the month of December 2017 and they are under the belief that the appeal was filed in time. Thereafter, 1[st] appellant failed to maintain regular contact and check up the progress of the case with the 4 C.M.Appln. No.1 of 2022 in R.S.A. No.557 of 2022 & R.S.A No.557 of 2022 advocate. Only after a long time, they came to know that the appeal has not been filed, since some documents were yet to be collected. Thereafter, Covid-19 pandemic and subsequent lock down restricted them from pursuing the matter. Hence the petition. 2. Subsequently, Advocate filed an additional affidavit, wherein the Advocate sworn in to the effect that he had been instructed by the client during December 2017 to file the appeal, but the file was misplaced and he could not file the appeal in time. Thereafter, the certified copy of the judgment was received which was not clear and by that time Covid-19 pandemic lock down also begun. Thereafter, application for certified copy was filed and it was received on 24.05.2022. Immediately after, appellants take back the file from him and entrusted with the present Advocate. It is further alleged that though the party contacted him in between, since the file was misplaced, he could not prepare the appeal memorandum in time. Hence, according to him there is no latches on the part of the petitioners/appellants in the above matter. 5 C.M.Appln. No.1 of 2022 in R.S.A. No.557 of 2022 & R.S.A No.557 of 2022 3. The Superintendent of Post Offices, Vadakara Division filed counter affidavit denying the averments with regard to the explanation for the delay. According to respondent delay has not been satisfactory and properly explained. Application for obtaining copy of the judgment was filed only on 25.04.2022. So the contention that the petitioner entrusted the matter with the Advocate at Ernakulam in December 2017 is false. Hence, he prayed for dismissal of the petition. 4. After the additional affidavit has been filed, an additional counter affidavit also filed denying the averments in the additional affidavit. It is alleged that there is nothing on record to show that the appellants had applied for copies earlier. 5. Heard both sides. 6. Suit is one for damages caused to post office building, installation and equipments. A crime was registered in connection with the incident by Vadakara police. The incident occurred in connection with the protest and strike called for against the price hike 6 C.M.Appln. No.1 of 2022 in R.S.A. No.557 of 2022 & R.S.A No.557 of 2022 in petroleum products, by the youth wing of a political party. Total compensation of Rs.1,26,190/- was claimed. 7. Defendants filed written statement refuting all the allegations. PW1 to PW7 examined and Ext.A1 to A20 marked from the side of the plaintiff and Ext.B1 marked from the side of the defendants. On evaluating the facts, circumstances and evidence adduced trial court decreed the suit which was affirmed in first appeal. Against which defendants approaches this Court in second appeal. 8. So the question for determination is whether the appellants/petitioners offered sufficient cause for condoning the delay of 892 days in filing the above regular second appeal. In **Mata Din v. A. Narayanan [1970 (2) SCR 90]** two Judge Bench of Apex Court considered the material aspects to be considered in a petition filed under Section 5 of Limitation Act on the ground of mistake of counsel. Para No.6 of the said decision is relevant to be extracted which reads thus: _6. The law is settled that mistake of counsel may in_ 7 C.M.Appln. No.1 of 2022 in R.S.A. No.557 of 2022 & R.S.A No.557 of 2022 _certain circumstances be taken into account in condoning delay although there is no general proposition that mistake of counsel by itself is always a sufficient ground. It is always a question whether the mistake was bona fide or was merely device to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way. The High Court unfortunately never considered the matter from this angle. If it had, it would have seen quite clearly that there was no attempt to avoid the Limitation Act but rather to follow it albeit on a wrong reading of the situation._ 9. From the above it can be deducted that mistake of counsel is not always a sufficient ground to condone the delay. The question depends on the fact whether the mistake was bona fide or to cover the laches on the part of the litigant, or an attempt to save limitation in an untoward manner. 10. In **Maji Sannemme v. Reddy Sreedevi [2020 6 KLT 1199 SC]** was a case in which the high court condoned the delay of 1011 days in preferring the second appeal finding that there are 8 C.M.Appln. No.1 of 2022 in R.S.A. No.557 of 2022 & R.S.A No.557 of 2022 certain questions which require a debate in the second appeal and it is not necessary that the matter be rejected without inviting a decision on merits. It is also found that, if the delay is condoned, though enormous what happens at best is to give an opportunity to the parties to canvas their respective case. Further that, the question of delay is being of procedure. The attempt of the court should be to encourage a healthy discussion on merits than rejecting at threshold and accordingly delay was condoned. While the matter came up before the Apex Court from the averments in the application for condonation of delay, the Apex Court was of the opinion that it was a case of gross negligence or want of due diligence on the part of the respondents/appellants before the high court in filing such a belated appeal. It has been held by the Apex court that there is no sufficient explanation for the delay from 15.03.2017. In Para No.7 of the said judgment the observation of **Ramlal, Motilal and Chhotelal v. Rewa Coalfields Ltd. [AIR 1962 SC 361]** has been quoted which reads thus: 9 C.M.Appln. No.1 of 2022 in R.S.A. No.557 of 2022 & R.S.A No.557 of 2022 _7. 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 the decree as beyond challenge, and this legal right which has accrued to the decree-holder 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 I.L.R (1890).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_ 10 C.M.Appln. No.1 of 2022 in R.S.A. No.557 of 2022 & R.S.A No.557 of 2022 _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."_ 11. In **John K.P. v. Mani Varkey : 2014 (4) KHC 36** while dealing with condonation of delay, the learned Single Judge quoted **Naubat Ram Sharma v. Additional District Judge II, Moradabad and Others : 1987 KHC 1198 : AIR 1987 SC 1352** . Paragraphs 13 and 14 of the said judgment is relevant here to quote which read thus: _13. "1. Ordinarily a litigant does not stand to benefit by lodging an appeal late._ _2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties._ _3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why_ 11 C.M.Appln. No.1 of 2022 in R.S.A. No.557 of 2022 & R.S.A No.557 of 2022 _not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner._ _4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay._ _5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay In fact he runs a serious risk._ _6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so._ _Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State', which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner."_ C.M.Appln. No.1 of 2022 in R.S.A. No.557 of 2022 & R.S.A No.557 of 2022 12 _It was held therein that the Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause"._ 12. Admittedly, there is delay of 892 days in filing the appeal. The reasons stated in the supporting affidavit filed by the petitioner is that they had entrusted the matter with the Advocate in December 2017, but, thereafter they failed to contact the Advocate to know the progress of the case. That itself would show the lack of bona fides on the part of the appellants. 13. Additional affidavit filed by the Advocate, on the other hand would state that in December 2017, he has been entrusted with the file but due to oversight the file was misplaced and could not prepare appeal memo in time. It is further alleged that in between the client contacted, but since the file was misplaced, he could not file the appeal in time. So that averments of the Advocate is contrary to the averments in the affidavit filed by the appellant to the effect that 13 C.M.Appln. No.1 of 2022 in R.S.A. No.557 of 2022 & R.S.A No.557 of 2022 appellants failed to make regular contact with the Advocate and to do a proper check on the progress of the case. 14. Though it is alleged that advocate applied for certified copy and it was not clear and subsequently he again applied for certified copy etc. the date on which he initially applied for certified copy is not stated in the affidavit. As rightly contended by the learned counsel for the respondent, there is nothing on record to show that he had applied for certified copy earlier and copy obtained was not legible. Hence, the affidavit filed by the advocate also is lacking in bona fides and is only to cover up the laches on the part of the party. 15. The averment in the affidavit filed in support of the petition filed by the petitioners itself would speak in volumes about the latches and negligence on the part of the appellants, since, according to them, the Advocate was entrusted with the file in the year 2017 and thereafter they failed to maintain regular contact and proper check with the Advocate and it is further alleged that only after a long months they came to know that the case has not been filed. The date C.M.Appln. No.1 of 2022 in R.S.A. No.557 of 2022 & R.S.A No.557 of 2022 14 on which they came to know about the non filing of the appeal is stated in the affidavit. In a routine casual manner affidavit has been filed to condone the long delay of 892 days. Hence, I am of the considered view that the petitioners failed to offer sufficient reasons to condone the delay. So, I do not find any reason whatsoever to entertain the petition to condone the delay of 892 days caused in filing the appeal. In the result, petition dismissed. In the facts and circumstances there is no order as to costs. ## **R.S.A. No.557 of 2022** C.M.Application No.1/2022 for condonation of delay is dismissed, consequently, RSA also dismissed. Sd/- **M.R.ANITHA JUDGE** SMF