OP(C).No. 2422 of 2017 (O)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 26TH DAY OF OCTOBER 2017/4TH KARTHIKA, 1939** ## **OP(C).No. 2422 of 2017 (O)** **--------------------------IA 1151/16 IN CMA 43/2016 OF DISTRICT COURT, ALAPPUZHA** **----------** ## **PETITIONER(S)/APPELLANTS:** ## **------------------------** **1. SARASSAMMA, AGED 65, D/O.KAMALAKSHI, VADAKKEVELI PERUMTHURUTHU MURI, KANJIKUZHI VILLAGE, MUHAMMA P.O.** **2. KANAKAMMA, AGED 60, RESIDING AT MATTATHIL, PERUMTHURUTHU MURI, KANJIKUZHI VILLAGE, MUHAMMA P.O.** **3. PONNAPPAN, AGED 59, S/O.KARUNAKARANKURUKAN CHIRAYIL, PERUMTHURUTHU MURI, KANJIKKUZHI VILLAGE, MUHAMMA.P.O.** **4. PURUSHAN, AGED 58, S/O.KARUNAKARAN, PANDARAPATTATHIL, PERUMTHURUTHU MURI, KANJIKKUZHI VILLAGE, MUHAMMA.P.O.** ## **5. GEETHA,** - **AGED 54, KAMALAKSHY, MATTATHIL, PERUMTHURUTHU MURI, KANJIKKUZHI VILLAGE,MUHAMMA.P.O.** **6. MALATHI, AGED 53, KAMALAKSHY, PERUMTHURUTHU MURI, KANJIKKUZHI VILLAGE, MUHAMMA.P.O.** **BY ADVS.SRI.K.V.SADANANDA PRABHU SRI.A.KEVIN THOMAS** **RESPONDENT(S)/RESPONDENTS: --------------------------** **1. SARNGADHRAN, AGED 63, S/O.KUTTAPPAN, ELUPUNNATHAYA PADINJARETHAYIL, NOW RESIDING AT PUTHANTHARA VEETTIL, ULLALA MURI, THALAYALAM VILLAGE, VAIKKOM TALUK.686141.** ## **OP(C).No. 2422 of 2017 (O) ---------------------------** **2. AMMINI AGED 67, PAPPILYVEEDU, PERUMTHURUTHU MURI, KANJIKKUZHI VILLAGE, MUHAMMA.P.O. 688 525.** **3. RATNAMMA, AGED 65, D/O.KARUMBI, VELIYIL VEETTIL, S.ARYNAD MURI, ARYAD SOUTH VILLAGE, AMBALAPPUZHA TALUK.688 561.** **4. VIDYADHRAN, AGED 60, S/O.KUTTAPPAN, THAKKIDIVELIYIL, ARYADU NORTH MURI, KOMALAPURAM VILLAGE, AMBALAPPUZHA TALUK.688 561.** **5. RAMANI** - **AGED 57, D/O.KOCHKARUMBI, THAKKIDIVELIYIL, ARYAD NORTH MURI, KOMALAPURAM VILLAGE, AMBALAPPUZHA TALUK.688 561.** **6. ABHILASH** - **AGED 32, S/O.GOPI, THEKKEVELIYIL, PERUMTHURUTHU MURI, KANJIKKUZHI VILLAGE, CHERTHALA TALUK.688 524.** **7. APPUKKUTTAN** - **AGED 61, S/O.VASU, KUNNEVELIYIL, PERUMTHURUTHU MURI, KANJIKKUZHI VILLAGE, CHERTHALA TALUK.688 524.** **8. PUSHKKARAN,** - **AGED 63, S/O.KUNJI, KUTTIDAYIL, ARYADU SOUTH MURI, AVALOOKUNNU P.O.688 006.** **9. SUDHA,** - **AGED 51, D/O.NARAYANI, SONI BHAVAN, PONNADU P.O., AMBALAPPUZHA TALUK.688 538.** - **10.THANKAMANI, AGED 67, D/O.NARAYANI, THAKIDIVELI VEETTIL, ARYADU NORTH MURI, KALAVOOR P.O., AMBALAPPUZHA TALUK.688 522.** **BY ADVS. SMT.C.G.BINDU SMT.C.G.AJITHA** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 26-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** **OP(C).No. 2422 of 2017 (O) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT P1 TRUE COPY OF THE COMMISSION REPORT DT. 25.1.2017 IN OS 521/08 OF THE MUNSIFF COURT ALAPUZHA.** **EXHIBIT P2 TRUE COPY OF THE PLAN PRESENTED BY THE COMMISSIONER ALONG WITH EXHIBIT P1.** **EXHIBIT P3 TRUE COPY OF THE ORDER OF THE DISTRICT COURT IN IA 1151/16 IN CMA 43/16 DT. 10.7.2017.** **RESPONDENT(S)' EXHIBITS NIL** **-----------------------** **K.V. P.S.TO JUDGE** ## **ANIL K.NARENDRAN, J. --------------------------------------O.P.(C).No.2422 of 2017 ---------------------------------------Dated this the 26[th] day of October, 2017** ## **J U D G M E N T** The petitioners, who are the defendants 1 to 6 in O.S.No.521 of 2008 on the file of the Munsiff's Court, Alappuzha, are before this Court in this Original Petition filed under Article 227 of the Constitution of India, seeking an order to set aside Ext.P3 order dated 10.07.2017 of the District Court, Alappuzha in I.A.No.1151 of 2016 in C.M.A.No.43 of 2016, which was an application filed under Section 5 of the Limitation Act for condonation of delay of 618 days in filing that C.M.A. 2. Heard the learned counsel for the petitioners/defendants 1 to 6 and also the learned counsel for respondents 1 to 10. 3. The sole issue that arises for consideration in this Original Petition is as to the legality or otherwise of Ext.P3 order passed by the lower appellate court, whereby I.A.No.1151 of 2016, filed by the petitioners, who are the appellants in C.M.A.No.43 of 2016, for condonation of delay of 618 days in filing that appeal stands dismissed. 4. The pleadings and materials on record would show that O.S.No.521 of 2008 is one filed by the plaintiffs for partition. In the said suit, defendants 1 to 6 were set _ex-parte_ and an _ex-parte_ decree was also passed. With a delay of 732 days, defendants 1 to 6 filed interlocutory application under Order IX Rule 13 of the Code O.P.(C).No.2422 of 2017 2 of Civil Procedure, 1908, seeking an order to set aside that _ex-parte_ decree. The said application ended in dismissal by the order dated 28.11.2014. Challenging the said order, defendants 1 to 6 filed C.M.A.No.43 of 2016 before the District Court, Alappuzha. The said appeal was filed with a delay of 618 days. In order to condone the said delay, I.A.No.1151 of 2016 was filed under Section 5 of the Limitation act, which ended in dismissal by Ext.P3 order. 5. A reading of Ext.P3 order would show that defendants 1 to 6 filed application under Order IX Rule 13 of the Code seeking an order to set aside the _ex-parte_ decree in O.S.No.521 of 2008 with a delay of 732 days. As no satisfactory explanation could be offered for the inordinate delay in filing that application, the same was dismissed by the order dated 28.11.2014. Even thereafter, they took considerable time to challenge the said order by filing C.M.A.No.43 of 2016. The materials on record would show that the said C.M.A. was filed along with I.A.No.1151 of 2016 seeking an order to condone the delay of 618 days. After considering the rival contentions, the lower appellate court found that there was absolutely no satisfactory explanation for the inordinate delay in filing the C.M.A. It was in such circumstances, that the lower appellate court dismissed I.A.No.1151 of 2016 by Ext.P3 order. The reasoning of the lower appellate court, as contained in paragraphs 15 to 17 of Ext.P3 order read thus : O.P.(C).No.2422 of 2017 3 _“15. It is stated by PW1 that during the Mandalam and Makaram season he would be at Sabarimala in connection with Copra work and during the other period he would be in his native village only. Hence, even if the 4[th] petitioner, who claims that he is conducting the litigation on behalf of the others had any difficulty to approach counsel's office or to contact him over the phone that was only for a limited period of maximum of 3 months. There would not have been any difficulty for him to contact his counsel during the other period. No cogent explanation is forthcoming from him either in the proof affidavit or in the affidavit in support of the IA as to why such an attempt was not made._ _16. Even if PW1 had any difficulty, there would not have been any difficulty for the petitioners 2, 3, 5 and 6 to contact the lawyer. Except the first petitioner, who claims to be in Andra Pradhesh, all other petitioners are in the native Village only._ _17. The conduct of the petitioners also will have to be considered. The petitioners were set exparte in the suit and later they filed an application to set aside the exparte order which was allowed and they were permitted to contest the suit, whereupon they filed written statement. But at the time of the trial the petitioners again remained exparte and invited an exparte decree against them. It is a fact that they received the notice at the final decree application, but they did not file an application to set aside the exparte decree then and there. Only when the commissioner inspected the property for partition, they filed IA to set aside the exparte decree, by which time there occurred a considerable delay of 732 days. The very same reason convassed in the said application for condoning the_ O.P.(C).No.2422 of 2017 4 _delay with respect to the difficulties of the petitioners to contact their lawyer are canvassed in this IA. It is not possible to believe that the petitioners were unaware of the dismissal of their IA. After the dismissal of the IA, they again remained silent for 618 days, by which time a final decree was passed, engrossed on the stamp paper and all process for effecting a partition was over. However, they thought of filing an appeal against the order of dismissal of their application to set aside the exparte decree only after delaying the matter for another 618 days.”_ 6. Though, the expression 'sufficient cause' employed by the Legislature in Section 5 of the Limitation Act is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice, as held by the Apex Court in **Esha Bhattacharjee v. Raghunathpur Nafar Academy [(2013) 12** **SCC 649]** , lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. In the said decision, the Apex Court has also held that, 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. O.P.(C).No.2422 of 2017 5 7. In Ext.P3 order, the lower appellate court has stated valid reasons to dismiss I.A.No.1151 of 2016 filed for condonation of delay. Despite service of notice in the final decree application, defendants 1 to 6 filed application to set aside the _ex parte_ decree only with a delay of 732 days. Even after dismissal of the said application, they filed C.M.A. before the lower appellate court with a delay of 618 days. The very same reason, canvassed in the earlier application, was stated in the application filed in the C.M.A. as well. ## 8. In **Shalini Shyam Shetty v. Rajendra Shankar Patil** **[(2010) 8 SCC 329]** the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. ## 9. In **Sobhana Nair K.N. v. Shaji S.G.Nair (2016 (1) KHC** **1)** a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under O.P.(C).No.2422 of 2017 6 Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principle of law. 10. Viewed in the light of the law laid down in the decisions referred to supra, the reasoning of the lower appellate court in Ext.P3 order while rejecting I.A.No.1151 of 2016 cannot be termed either perverse or patently illegal, warranting an interference of this Court in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. It cannot be said that while issuing the said order, the lower appellate court committed any manifest error or that the said order is directly in conflict with settled principles of law. In the result, this Original Petition fails and the same is dismissed. Sd/- **ANIL K.NARENDRAN JUDGE** AV