Nasar and Others v. Moideen and Abu Tahir

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 11[TH] DAY OF NOVEMBER 2022 / 20TH KARTHIKA, 1944 RSA NO. 649 OF 2022** **AGAINST THE JUDGMENT AND DECREE PASSED IN APPEAL SUIT NO.83/1999 OF SUBORDINATE JUDGE'S COURT, OTTAPPALAM DATED 29.09.2018 AGAINST THE JUDGMENT AND DECREE PASSED IN ORIGINAL SUIT NO.231/1997 OF MUNSIFF COURT, OTTAPPALAM DATED 07.04.1999** **APPELLANTS/LEGAL REPRESENTATIVE OF SUPPLEMENTAL DECEASED 2ND APPELLANT (APPELLANTS 1 TO 9 HEREIN) AND LR'S OF DECEASED SUPPLEMENTAL 3RD APPELLANT (APPELLANTS 10 AND 11)/LEGAL REPRESENTATIVES OF DECEASED DEFENDANT:** 1 NASAR AGED 56 YEARS S/O. LATE PATHUTTI UMMA, KALLINGAL HOUSE, KOTHAKURISSI AMSOM, EDAKODE PAVUKONAM DESOM, PAVUKONAM POST, OTTAPALAM TALUK, PALAKKAD DISTRICT,PIN-679522. 2 UMMALLU, AGED 58 YEARS ,D/O. LATE PATHUTTI UMMA, KALIINGAL HOUSE, KOTHAKURISSI AMSOM, EDAKODE PAVUKONAM DESOM, PAVUKONAM POST, OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN-679522. 3 AFSATH, AGED 53 YEARS, D/O. LATE PATHUTTI UMMA, KALLINGAL HOUSE, KOTHAKURISSI AMSOM, EDAKODE PAVUKONAM DESOM, PAVUKONAM POST, OTTAPALAM TALUK, PALAKKAD DISTRICT,PIN-679522. 4 SULAIKHA, AGED 48 YEARS, D/O. LATE PATHUTTI UMMA, KALLINGAL HOUSE, KOTHAKURISSI AMSOM, EDAKODE PAVUKONAM DESOM, PAVUKONAM POST, OTTAPALAM TALUK, PALAKKAD DISTRICT,PIN-679522. 5 THAHIRA, C.M.Appln. No.1 of 2022 in R.S.A. No.649 of 2022 & R.S.A No.649 of 2022 2 AGED 45 YEARS, D/O. LATE PATHUTTI UMMA, KALLINGAL HOUSE, KOTHAKURISSI AMSOM, EDAKODE PAVUKONAM DESOM, PAVUKONAM POST, OTTAPALAM TALUK, PALAKKAD DISTRICT ,PIN-679522. 6 JALEEL, AGED 38 YEARS. S/O.LATE PATHUTTI UMMA, KALLINGAI HOUSE, KOTHAKURISSI AMSOM, EDAKODE PAVUKONAM DESOM, PAVUKONAM POST, OTTAPALAM TALUK, PALAKKAD DISTRICT,PIN-679522. 7 ABBAS @ AMEER, AGED 35 YEARS, S/O.LATE PATHUTTI UMMA, KAILINGAI HOUSE, KOTHAKURISSI AMSOM, EDAKODE PAVUKONAM DESOM, PAVUKONAM POST, OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN-679522. 8 FATHIMA, AGED 28 YEARS, D/O. LATE PATHUTTI UMMA, KALLINGAL HOUSE, KOTHAKURISSI AMSOM, EDAKODE PAVUKONAM DESOM, PAVUKONAM POST, OTTAPALAM TALUK, PALAKKAD DISTRICT,PIN-679522. 9 SALMA, AGED 25 YEARS, D/O. LATE PATHUTTI UMMA, KALLINGAL HOUSE, KOTHAKURISSI AMSOM, EDAKODE PAVUKONAM DESOM, PAVUKONAM POST, OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN-679522. 10 RAFEEK, AGED 45 YEARS, S/O.LATE HAMSA, KALLINGAL HOUSE, KOTHAKURISSI AMSOM, EDAKODE PAVUKONAM DESOM, PAVUKONAM POST, OTTAPALAM TALUK, PALAKKAD DISTRICT,PIN-679522. 11 UMMER, AGED 33 YEARS, S/O.LATE HAMSA, KALLINGAL HOUSE, KOTHAKURISSI AMSOM, EDAKODE PAVUKONAM DESOM, PAVUKONAM POST, OTTAPALAM TALUK, PALAKKAD DISTRICT,PIN-679522. BY ADV R.SREEHARI 3 C.M.Appln. No.1 of 2022 in R.S.A. No.649 of 2022 & R.S.A No.649 of 2022 ## **RESPONDENTS/RESPONDENT & LEGAL REPRESENTATIVE OF DECEASED SUPPLEMENTAL 3RD APPELLANT/PLAINTIFF & LEGAL REPRESENTATIVE OF THE DECEASED DEFENDANT:** 1 MOIDEEN, AGED 77 YEARS S/O.CHOLAYIL DECEASED ALAVI HAJI, CHOLAYIL HOUSE, KOTHAKURISSI AMSOM, EDAKODE PAVUKONAM DESOM, PAVUKONAM POST, OTTAPALAM TALUK, PALAKKAD DISTRICT,PIN-679522. 2 ABU TAHIR @ ABU, AGED 40 YEARS S/O.LATE HAMSA, KALLINGAL HOUSE, KOTHAKURISSI AMSOM, EDAKODE PAVUKONAM DESOM, PAVUKONAM POST, OTTAPALAM TALUK, PALAKKAD DISTRICT,PIN679522. BY ADV K.RAVI (PARIYARATH) -R1 CAVEATOR ## **THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON** **04.11.2022, THE COURT ON 11.11.2022 DELIVERED THE FOLLOWING:** 4 C.M.Appln. No.1 of 2022 in R.S.A. No.649 of 2022 & R.S.A No.649 of 2022 ## **M.R.ANITHA, J.** **----------------------------------------** **C.M.Appln. No.1 of 2022 in R.S.A. No.649 of 2022 & R.S.A NO.649 OF 2022** **==> picture [72 x 33] intentionally omitted <==** **----------------------------------------------ORDER & JUDGMENT** ## **Dated this the 11[th] day of November, 2022** Petition to condone the delay of 683 days in filing the above R.S.A. The 1st appellant/petitioner filed supporting affidavit for and on behalf of the other appellants. 2. This appeal has been filed against the judgment and decree in A.S. No.83/1999 on the file of Subordinate Judge's Court, Ottappalam dated 29.09.2018 by which the judgment and decree in O.S. No.231/1997 on the file of Munsiff's Court, Ottappalam dated 07.04.1999 has been confirmed. The petitioners/appellants (herein after be referred as 'petitioners') were not parties to the suit or the appeal. They are legal representatives of the deceased sole defendant Beevi Umma, who preferred the appeal before the Sub Court, 5 C.M.Appln. No.1 of 2022 in R.S.A. No.649 of 2022 & R.S.A No.649 of 2022 Ottappalam challenging the judgment and decree in O.S. No.231/1997. Pending the appeal she died and her legal heirs were impleaded as supplemental appellants 2 and 3 and they contested the appeal and appeal was dismissed on 29.09.2018. Supplemental 3rd appellant Hamsa was conducting the case on behalf of the supplemental 2nd appellant. After dismissal of the appeal, the supplemental 2nd appellant was advised to take up the matter in appeal before this Court. After obtaining the certified copy of the judgment and decree the said Hamsa took the entire file from the counsel appearing for him before the lower Appellate Court. In the mean time, supplemental appellants 2 and 3 died on 16.05.2021 and 19.04.2022 respectively. E.P. No.76/2021 was filed in the meantime by 1st respondent seeking for execution of the decree passed. E.P. was originally filed against the supplemental 2nd and 3rd appellants. Since, Pathutty Umma, the 2nd appellant was no more, the 1st respondent filed an application as E.A. No.198/2021 to implead the legal representatives of the deceased Pathutty Umma. That 6 C.M.Appln. No.1 of 2022 in R.S.A. No.649 of 2022 & R.S.A No.649 of 2022 application was allowed. Thereafter, the appellants searched for case files. But file and the judgment and decree could not be traced out. Thereafter, appellants filed application for certified copy of the judgment and decree on 08.10.2022 and that copy was received on 22.10.2022. So, the appeal ought to have been filed on or before 28.05.2018 and there is a delay of 683 days in filing the appeal. There is no willful latches on the part of the petitioners in the above matter. Hence, the petition to condone the delay 683 days. 3. The 1st respondent filed counter affidavit contending that the petition to condone the delay has been filed on an experimental basis to harass the respondent and to prevent him from enjoying the fruits of the decree. After the death of the original appellants the legal heirs were impleaded who contested the appeal and suffered an adverse judgment. They expired long after passing of decree and they had enough time to prefer an appeal during their life time. It shows that they accepted the concurrent findings rendered by the courts below. So the present appellants cannot take up the issue afresh. The 7 C.M.Appln. No.1 of 2022 in R.S.A. No.649 of 2022 & R.S.A No.649 of 2022 1st respondent filed an application for impleadment of the legal representatives of the deceased Pathutty Umma as E.A. No.198/2021 and that had been allowed on 02.12.2021. It is almost after one year the present appeal has been filed. There is no sufficient reason to condone the delay long delay. In merit also the appellants have no challenge against the title of the predecessor in interest of the 1st respondent, Alavi Haji which was found against the predecessor in interest of the appellants way back on 11.10.1995. It has become final on account of dismissal of O.A. No.3055/1975. There is also concurrent findings rendered by the courts below granting recovery of possession on the strength of title. The present petition has been filed only to obstruct the delivery proceedings without any bonafides and hence he prayed for a dismissal of the petition. 4. Heard both sides. 5. 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** 8 C.M.Appln. No.1 of 2022 in R.S.A. No.649 of 2022 & R.S.A No.649 of 2022 ## **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 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_ 9 C.M.Appln. No.1 of 2022 in R.S.A. No.649 of 2022 & R.S.A No.649 of 2022 _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."_ _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"._ _14. The learned Senior Counsel has also relied on the decision in_ _**State of Nagaland v. Lipok AO and Others MANU/SC/0250/2005 : 2005 KHC 515 : AIR 2005 SC 2191 : 2005 (3) SCC 752 : 2005 SCC (Cri)**_ C.M.Appln. No.1 of 2022 in R.S.A. No.649 of 2022 & R.S.A No.649 of 2022 10 _**906 : 2005 (183) ELT 337 : 2005 (2) KLT 547** , wherein it was held in paragraph 12 that:_ _"The expression "sufficient cause" is adequately elastic to enable the Court to apply the law in a meaningful manner which subserves the ends of justice-that being the lifepurpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. This Court reiterated that the expression "every day's delay must be explained" does not mean that a pedantic approach should be made. The doctrine must be applied in a rational common sense pragmatic manner. 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. There is no presumption that delay is occasioned deliberately, or on account of_ 11 C.M.Appln. No.1 of 2022 in R.S.A. No.649 of 2022 & R.S.A No.649 of 2022 _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. Judiciary is not respected on account of its power to legalise 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 ….........."_ 6 _._ Hence, sufficient cause has to be interpreted in a meaningful manner to subserve the ends of justice. Liberal construction of the same should not cause injustice to the opposite side also. 7. Here, the main contention of the learned counsel for the petitioners is that the petitioners were not parties either in the original suit or in the first appeal. The original defendant died pending the first appeal and supplemental appellants 2 and 3 were impleaded and among them 3rd appellant Hamsa was conducting the case for 12 C.M.Appln. No.1 of 2022 in R.S.A. No.649 of 2022 & R.S.A No.649 of 2022 and on behalf of the 2nd appellant Pathutty Umma. After the disposal of the appeal according to the petitioners the entire file was taken by the supplemental 3rd appellant from the concerned counsel and thereafter only after his death when they came to know about the execution proceedings, when the application was filed to implead the legal heirs of deceased Pathutty Umma as party in the execution petitions, the petitioners search for the case bundle. But as rightly contended by the learned counsel for the 1st respondent there is no reason forthcoming as to why the supplemental appellants in A.S. No.83/1999 did not file any appeal though the decree was passed on 29.09.2018. Admittedly, they died only on 16.05.2021 and 19.04.2022. So, no explanation what so ever is forthcoming from the side of the petitioners in that regard. According to them, notice in E.A. No.198/2021 to implead the legal heirs of Pathutty Umma was allowed on 02.12.2021. It was further alleged that thereafter they searched for the case files which supplemental 3rd appellant Hamsa took from the office of the counsel appearing for the appellants in 13 C.M.Appln. No.1 of 2022 in R.S.A. No.649 of 2022 & R.S.A No.649 of 2022 A.S. No.83/1999 of Sub Court, Ottapalam. Thereafter they applied for certified copies only on 18.10.2022. Is it that, for ten months they were searching for case file? The averments so made is seems to be lacking in bonafides. 8. So, as rightly contended by the learned counsel for the petitioners though the appeal was dismissed on 29.09.2018 at the time when both the supplemental appellants 2 and 3 were alive, they did not opt to file any appeal against the judgment and decree during their life time. They died almost after 3 to 4 years after passing of the judgment and decree. 9. The learned counsel also would contend that in merit also the appellants have no good case. The suit is one filed for recovery of possession on the strength of title with mesne-profits. Though the original defendant claimed the right of kudikidappu as well as tenancy right and question was referred for finding to the Land Tribunal it was found against. It is also his contention that no evidence whatsoever has been adduced from the side of the defendant in the suit. On going 14 C.M.Appln. No.1 of 2022 in R.S.A. No.649 of 2022 & R.S.A No.649 of 2022 through the judgment and decree passed by the courts below also it appears that though the claim of kudikidappu and tenancy right were raised it has been concurrently found that the property has been taken on lease by the 1st respondent and defendant. Predecessor in interest of the petitioners did not adduce any evidence either oral or documentary to substantiate any of her contentions. The original suit is of the year 1997 filed for recovery of possession on the strength of title. Two courts concurrently found in favour of the respondent/plaintiff. 10. Merits of the matter is also a factor to be taken into account while considering petition for condonation of delay. In para No.15 of **John K.P.** referred above it has been held that the courts have been called upon to have a rational commonsense in a pragmatic manner when approaching the question of sufficient cause for condoning the delay in filing appeals. It is also held that when there is long delay the merits of the matter also is required to be considered while dealing with question of sufficient cause for 15 C.M.Appln. No.1 of 2022 in R.S.A. No.649 of 2022 & R.S.A No.649 of 2022 condoning delay. **Naubat Ram Sharma v Addl. District Judge ll** , **Moradabad and others AIR 1987 SC 1352** was relied on by this court for arriving at that conclusion. So, on close evaluation of the rival contentions, facts and circumstances, I am of the considered view that the petitioners could not offer any sufficient cause for condoning the long delay of 683 days in filing this appeal. Hence, I find no justifiable reason to condone the delay. In the result, petition dismissed. In the facts and circumstances there is no order as to costs. ## **R.S.A. No.649 of 2022** C.M.Application No.1/2022 for condonation of delay is dismissed, consequently, RSA also dismissed. Sd/- **M.R.ANITHA JUDGE** SMF //TRUE COPY// PA TO JUDGE