N.K. Ayyappan v. A. Sankunny, Padmanabhan and State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 24[TH] DAY OF MARCH 2022 / 3RD CHAITHRA, 1944 CRP(LR) NO. 12 OF 2020** **AGAINST THE ORDER DATED 22.05.2019 IN I.A.NO.53/2016 IN AA 23/2016 OF APPELLATE AUTHORITY (LR), ALAPPUZHA SM 101/1999 OF LAND TRIBUNAL, CHERTHALA** ## **PETITIONER/PETITIONER/APPELLANT:** N.K.AYYAPPAN, AGED 76 YEARS S/O KUNJANADAN, DAIVANTHINKAL HOUSE, POLLATHAI P.O, ALAPPUZHA, PIN-688 567. BY ADVS. R.JAIKRISHNA (K/214-G/2008)-15822 NARAYANI HARIKRISHNAN ## **RESPONDENTS/COUNTER PETITIONERS/RESPONDENTS & STATE:** 1 A.SANKUNNY, AGED 74 YEARS KANNARKATTU, PERUMTHURUTHU MURI, KANJIKKUZHY VILLAGE, CHERTHALA TALUK, PIN-688 539. 2 PADMANABHAN, AGED 68 YEARS S/O KUNJANADAN, DAIVANTHINKAL HOUSE, POLLATHAI P.O, ALAPPUZHA (NOW RESIDING AT THUNDIPARAMBIL HOUSE, JANATHA ROAD, NEAR TDCH SCHOOL, VYTTILA, ERNAKULAM PIN-682 019). 3 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LAND REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. BY ADVS. SRI.DINESH R.SHENOY FOR R1 SRI.P.ROHIT PREMANANDAN SHENOY SRI.EBIN MATHEW SENIOR GOVERNMENT PLEADER SRI DENNY DEVASSY FOR R3 THIS CRP (LAND REFORMS ACT) HAVING BEEN FINALLY HEARD ON 16.03.2022, THE COURT ON 24.03.2022 DELIVERED THE FOLLOWING: CRP.(LR).No.12/2020 2 ## _**A. BADHARUDEEN, J.**_ ================================ _C.R.P.(L.R) No.12 of 2020_ ================================ _Dated this the 24[th] day of March, 2022_ ## _**O R D E R**_ In this Revision Petition filed under Section 103 of the Kerala Land Reforms Act, 1963, one N.K.Ayyappan, who suffered order in S.M.No.101/1999 dated 25.10.2012 and order dated 22.05.2019 in I.A.No.53/2016 in A.A.No.23/2016, assails order passed by the appellate authority in I.A.53/2016. 2. Heard the learned counsel for the petitioner as well as the learned consel appearing for the respondents. 3. Brief facts: S.M.101/1999 under Section 72B of the Kerala Land Reforms Act was initiated for assignment of jenmom right over an extent of 70 cents in old Sy.Nos.165/4/1, 164/4/2 in Aryadu Vadakku Village, Ambalapuzha Taluk, Alappuzha. The petitioner herein and his CRP.(LR).No.12/2020 3 brother, the 2[nd] respondent are impleaded in the SM proceedings as the land owners. They had filed written objection with supporting documents. It was contended by the petitioner that the 1[st] respondent has tenancy right over 24 cents of land in Resurvey No.245/7 and the rest of the properties are in the possession and ownership of the petitioner and his brother over which no tenancy right exists in favour of the 1[st] respondent. Evidence was adduced before the Land Tribunal by both the parties. 4. The Land Tribunal, without passing a speaking order, as per order dated 25.10.2012, on a printed format, allowed purchase of jenmom right by the 1[st] respondent over 70 cents of land to the 1[st] respondent. 5. The petitioner herein had filed appeal challenging the order of the Land Tribunal, before the Appellate Authority by filing A.A.No.23/2016. The appeal was filed with delay of 59 months and 10 days. The petitioner had therefore filed IA.No.53/2016 CRP.(LR).No.12/2020 4 supported by affidavit detailing the reasons for the delay. It is stated in the petition that the petitioner has been a heart patient from 2016 onwards and had suffered three major heart attacks during the period from 2006 to 2016. It is also stated that he is under the continuous treatment of Dr.Abdul Salam.K of the Govt. Medical College, Alappuzha. It is submited that he has been living under medical support and was taking bed rest during the period when the order was passed by the Land Tribunal. It is his case that due to his debilitating illness he could not meet his lawyers to take steps for filing the appeal. To prove the fact of his illness the petitioner had produced Medical Certificate issued from Govt.Medical College, Alappuzha, before the Appellate Authority. 6. The petitioner, in short, sought condonation of delay of 59 months and 10 days (1185 days) in filing the appeal. Copy of I.A.No.53/2016 is not produced before this Court. When the counsel was asked to point out the reasons for the delay, the learned CRP.(LR).No.12/2020 5 counsel read out para.3 of the order impugned. In para.3 of the impugned order, the reasons stated by the petitioner for the delay in filing the appeal is on the assertion that he had been suffering from a disease from 2006 and had 3 major heart attacks during the period from 2006 to 2016 and had been under the treatment of Dr.Abdul Salam.K, Medical College Hospital, Alappuzha. Treatment certificate dated 1.10.2016 was produced to substantiate this fact. 7. But the appellate authority addressed the issue as to whether the petitioner shown "sufficient cause" for condoning the delay in tune with the mandate of Section 5 of the Limitation Act. The appellate authority observed that the authenticity of the medical certificate should be verified only after examining the person, who issued the same. Since the petitioner miserably failed to prove the authenticity of the certificate by giving sufficient time for examining the Doctor, the petitioner not opted to prove his CRP.(LR).No.12/2020 6 ailment to condone the long delay. Therefore, the appellate authority found that "sufficient cause" not shown for condoning the delay and accordingly delay petition was dismissed. The learned counsel for the petitioner placed decisions of the Apex Court reported in [(2013) 12 SCC 649], _**Esha Bhattacharjee v. Raghunathpur Nafar Academy**_ , and argued that the principles applicable to an application for condonation of delay are laid down in the above decison and therefore, this Court shall have to consider the above principles. For clarity, the principles are extracted hereunder: "The principles applicable to an application for condonation of delay are as follows: (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. CRP.(LR).No.12/2020 7 (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. CRP.(LR).No.12/2020 8 (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. (viii) There is a distinction between inordinate delay and a delay of short duration or 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. (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 given a total go by in the name of liberal approach. - (x) If the explanation offered is concocted or the grounds - urged in application are fanciful, the courts should be vigilant not CRP.(LR).No.12/2020 9 to expose the other side unnecessarily to face such a litigation. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. (xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. (xiv) An application for condonation of delay should be drafted careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. (xv) An application for condonation of delay should not be CRP.(LR).No.12/2020 10 dealt with in a routine manner on the base of individual philosophy which is basically subjective. (xvi) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. (xvii) The increasing tendency to perceive delay as a nonserious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters. 8. In a later decision reported in [(2020) 13 SCC 745], _**University of Delhi v. Union of India & Ors.**_ the Apex Court refused to condone delay of 916 days after referring various decisions dealing with "sufficient cause" when University of Delhi filed S.L.P in this matter. 9. In this matter, a petition was filed to receive additional CRP.(LR).No.12/2020 11 documents. Though reception of additional documents in the Revision Petition is not at par with the production of documents before the court of first instance, I have perused the petition and the documents produced along with the petition. The same are copies of some discharge cards showing admission treatment as well as O.P treatment during the period between 1999 to 2016. Though the documents are photocopies, the same would suggest that the petitioner has been on treatment. It is submitted by the learned counsel for the revision petitioner that the order may be set aside and the matter may be remanded to the Appellate Authority for proving sufficient cause based on the medical records and by examining its authors. As medical records _prima facie_ show treatment, I am inclined to allow the said prayer. 10. Therefore, the order impugned passed by the appellate authority in I.A.No.53/2016 is set aside. The matter remitted back to the Appellate Authority to consider I.A.No.53/2016, after CRP.(LR).No.12/2020 12 providing opportunity for both sides to adduce evidence. Parties shall appear before the Appellate Authority on 07.04.2022. 11. It is specifically ordered that the Appellate Authority shall take decision in the petition independently and untramelled by any observations in this order. Accordingly, this Revision Petition stands allowed. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_