P.A. Sadique and Sunitha v. T.Y. Yoosuf

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 16[TH] DAY OF SEPTEMBER 2022 / 25TH BHADRA, 1944** ## **RSA NO. 1316 OF 2016** **AGAINST THE ORDER/JUDGMENT IN AS 10/2013 OF SUB COURT,KOCHI** **OS 139/2011 OF MUNSIFF COURT,KOCHI** ## **APPELLANTS/APPELLANTS/DEFENDANTS:** **1 P.A.SADIQUE AGED 52 YEARS S/O. ABDUL RAHMAN, HOUSE NO.1/555, FORT NAGAR HOUSING COLONY, FOR KOCHI, KOCHI-1 REP.BY IT'S P.A.HOLDER A.S.SHAJI, S/O. A.A.SAYED, AGED 51, RESIDING AT ALANPARAMBIL MASS ROAD, MATTANCHERRY, KOCHI-682002 2 SUNITHA AGED 45 YEARS, W/O. P.A.SADIQUE, AGED 52 YEARS,HOUSE NO.1/555, FORT NAGAR HOUSING COLONY, FORT KOCHI, KOCHI-1 REP.BY IT'S P.A.HOLDER A.S.SHAJI, S/O. A.A.SAYED, AGED 51, RESIDING AT ALANPARAMBIL MASS ROAD, MATTANCHERRY, KOCHI-682002 BY ADVS. SRI.G.KRISHNAKUMAR SRI.B.S.SURAJ KRISHNA** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **T.Y.YOOSUF AGED 69, S/O. YACOOB, RESIDING AT HOUSE NO.CC/1/554, PLOT NO.26 FORT NAGAR, FORT KOCHI, KOCHI-682001 BY ADV SRI.T.ASAFALI** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01.09.2022,** **THE COURT ON 16.09.2022 DELIVERED THE FOLLOWING:** 2 C.M.Appl.No.1058 of 2016 in R.S.A.No.1316 of 2016 & R.S.A.No.1316 of 2016 ## M.R.ANITHA, J. ---------------------------------------------------- C.M.Appl.No.1058 of 2016 in R.S.A.No.1316 of 2016 & R.S.A.No.1316 of 2016 ----------------------------------------------------Dated this the 16[th] day of September, 2022 ## ORDER & JUDGMENT Petition has been filed under Section 5 of the Limitation Act to condone the delay of 619 days in filing the appeal. Petitioner filed supporting affidavit contending that he is the power of attorney holder of the appellants. Appellants are his siblings. A.S.No.10/2013 of Sub Court, Kochi was decreed on 20.12.2014. Against which, second appeal has been filed. Both the appellants are non resident Indians settled in Doha, Qatar. Now they are permanently settled in Aluva. At the time of filing of the suit petitioner was residing at Mattancherry. Later, he shifted residence to Aluva. Appellants purchased the plaint schedule property and resided there for a certain period. Later 3 C.M.Appl.No.1058 of 2016 in R.S.A.No.1316 of 2016 & R.S.A.No.1316 of 2016 due to dispute with the defendants they shifted residence to Aluva. Presently the plaint schedule property is rented out to third party and a home stay is being conducted therein. After the judgment and decree, the counsel informed the matter regarding their right and to prefer a second appeal and to collect judgment and if the appellants want to challenge it. Accordingly, appellants asked the petitioner to collect the judgment and give instruction to file the second appeal, if it is so needed. By that time, petitioner went to Mumbai in search of a job and he could not follow up the matter. In the meantime, some friends and mediators intervened to settle the matter amicably. In that course, a criminal case was filed by the respondents and family against the petitioner and his brother accusing to have demolished a part of the well in dispute and that was compromised and settled in court. So they are under the belief of settling the issue. But the respondents withdrew from the compromise talks with some dispute with the person who is conducting the home-stay. The petitioner also decided to come back to Kerala. Accordingly, he came back in September, 2016 C.M.Appl.No.1058 of 2016 in R.S.A.No.1316 of 2016 & R.S.A.No.1316 of 2016 **==> picture [8 x 8] intentionally omitted <==** and the lessee of the premises called him over to the plaint schedule property and complained about the hostile attitude of the respondents. The matter was informed to his sister and brother-in-law and they also instructed to file the second appeal. Hence the delay has been caused in preferring the appeal, which was not willful. Hence the petition. 2. Respondents filed counter affidavit contending that the appeal is hopelessly barred by limitation and petition to condone the delay of 619 days is not legally and factually maintainable. The second appeal is also not maintainable since there is no substantial question of law involved. The alleged mediation talk is stoutly denied. It is only an imagination of the petitioner. Appellants were fully aware of the result of the second appeal, having suffered concurrent adverse findings, appeal was not filed in time and the present petition is only on an experimental measure to make unlawful enrichment for protracting the litigation. Each days delay has to be explained. The application for condonation of delay has been filed on incorrect facts. So there is no sufficient reason to condone the 5 C.M.Appl.No.1058 of 2016 in R.S.A.No.1316 of 2016 & R.S.A.No.1316 of 2016 delay. 3. Heard both sides. 4. The main contention of the learned counsel for the respondents is that the actual delay caused is 622 days and not 619 days. No dates are mentioned as to when they have applied for copy and when it was received etc. He would also contend that though there is allegation regarding mediation talk the names of the mediators or friends or relations are not mentioned in the affidavit. According to him, there was no occasion for the respondent/plaintiff to go for a mediation because they have won the case in both the courts. So the whole story of mediation efforts alleged in the petition is false and concocted. Hence there is no reason to condone the long delay. 5. Learned counsel for the respondent placed reliance on Vedabai v. Shantaram Baburao Patil [2002 KHC 292]. Paragraph No.5 of the said judgment is highlighted, which reads thus: In exercising discretion under S.5 of the Limitation Act the Courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate 6 C.M.Appl.No.1058 of 2016 in R.S.A.No.1316 of 2016 & R.S.A.No.1316 of 2016 and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach but in the latter case no such consideration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard. The Court has to exercise the discretion on the facts of each case keeping in mind that in constructing the expression 'sufficient cause', the principle of advancing substantial justice is of prime importance. In our view in this case, the approach of the learned Civil Judge is wholly erroneous and his order is unsustainable. It is evident that the discretion under S.5 of the Limitation Act is exercised by the Civil Judge in contravention of the law laid down by this Court, that the expression 'sufficient cause' should receive liberal construction, in catena of decisions (see State of West Bengal v. The Administrator, Howrah Municipality & Others 1972 (1) SCC 366 and Smt. Sandhya Rani Sarkar v. Smt. Sudha Rani Debi & Others 1978 (2) SCC 116). The High Court in exercising its jurisdiction under S.115 C.P.C. failed to correct the jurisdictional error of the Appellate Court. ## 6. Paragraph No.8 of the decision in Oriental Aroma ## Chemical Industries Ltd. h as been highlighted by the learned counsel, which reads thus: 8. We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object C.M.Appl.No.1058 of 2016 in R.S.A.No.1316 of 2016 & R.S.A.No.1316 of 2016 7 of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for the redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. The expression “sufficient cause” employed in S.5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate – Collector, Land Acquisition, Anantnag v. Mst. Katiji, 1987 (2) SCC 107, N. Balakrishnan v. M. Krishnamurthy, 1988 (7) SCC 123 and Vedabai v. Shantaram Baburao Patil, 2001 (9) SCC 106. In dealing with the applications for condonation of delay filed on behalf of the State and its agencies instrumentalities this Court has, while emphasizing that same yardstick should be applied for deciding the applications for condonation of delay filed by private individuals and the State, observed that certain amount of latitude is not impermissible in the ## C.M.Appl.No.1058 of 2016 in R.S.A.No.1316 of 2016 & R.S.A.No.1316 of 2016 **==> picture [8 x 8] intentionally omitted <==** latter case because the State represents collective cause of the community and the decisions are taken by the officers/agencies at a slow pace and encumbered process of pushing the files from table to table consumes considerable time causing delay – G. Ramegowda v. Spl. Land Acquisition Officer, 1988 (2) SCC 142, State of Haryana v. Chandra Mani, 1966 (3) SCC 132, State of U.P. v. Harish Chandra, 1966 (9) SCC 309, State of Bihar v. Rathan Lal Sahu, 1966 (10) SCC 635, State of Nagaland v. Lipok Ao, 2005 (3) SCC 752, and State (NCT of Delhi) v. Ahmed Jaan, 2008 (14) SCC 582. 7. Mohd. Sahid and Ors v. Raziya Khanam (D) Thr. Lrs and Anr. [AIR 2018 SC 4724 : 2018 KHC 6798] was also brought to my attention. In that case there was a delay of 349 days in filing the petition to set aside the ex parte order and the petitioner did not file the written statement in spite of giving ample opportunities and the suit was of the year 1979. But they filed application with incorrect averments that they got knowledge about the judgment and decree only on 06.05.2013. In the said circumstances, it has been held that the appellants filed application for condonation of delay with incorrect facts and was negligent in pursuing the matter and hence the Apex Court C.M.Appl.No.1058 of 2016 in R.S.A.No.1316 of 2016 & R.S.A.No.1316 of 2016 **==> picture [8 x 8] intentionally omitted <==** was not inclined to interfere with the dismissal of the petition to condone the delay entered into by the High Court. 8. Rafeek and Anr. v. K. Kamarudeen and Anr. [ILR 2021 (4) Ker. 31 : 2021 (4) KHC 34 ] was relied on wherein this Court cautioned the necessity of drafting an application for condonation of delay with careful concern and not in a halfhazard 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. It is also held that an application for condonation of delay should not be dealt with in a routine manner. 9. In the present case, records would go to show that the first appellate court passed the judgment and decree on 20.12.2014. But the certified copy of the appellate judgment and decree would show that the copy application was made on 20.08.2016 and charges were called for on 26.08.2016 and copy of was delivered on 29.08.2016 and present petition has been filed on 05.12.2016. Affidavit is silent as to what prevented the parties for applying for a certified copy of the judgment for a C.M.Appl.No.1058 of 2016 in R.S.A.No.1316 of 2016 & R.S.A.No.1316 of 2016 10 period of almost one year and 8 months. The petitioner, the power of attorney holder, would state that he had been to Mumbai in search of job after the pronouncement of the judgment and decree. Though in the affidavit it has been alleged that after the judgment and decree their advocate informed the matter and advised to prefer second appeal and accordingly the appellants instructed the petitioner to go and meet the counsel and collect the judgment and decree etc. nowhere there is any reference with regard to the dates on which such directions or instructions were made. The entire petition is silent as to when the appellants or the power of attorney holder came to know about the passing of the judgment and decree by the first appellate court. So also though the petitioner, the power of attorney holder is alleged to have gone to Mumbai the date on which he went to Mumbai and when he returned are not discernible from the affidavit. So on a mere glance through the affidavit it is clear that the affidavit has been drafted without any care or concern in a routine manner. So also though there is reference with regard to the mediation talk that is stoutly denied 11 C.M.Appl.No.1058 of 2016 in R.S.A.No.1316 of 2016 & R.S.A.No.1316 of 2016 by the respondent-plaintiff. In the affidavit there is no mention regarding the persons who mediated the matter and affidavit also would not disclose the period during which mediation was conducted and when it was failed. The delay is long which according to the petitioner is 619 days though the respondents would contend that the actual delay caused is 622 days he did not raise any such contention in the counter affidavit filed. He also could not convince how the delay of 622 days has been computed by him. Anyhow the delay of 619 days caused also has not been explained satisfactorily. 10. In merit also petitioners/defendants suffered concurrent adverse finding by the courts below. The dispute is with regard to use of well scheduled as plaint schedule property. According to the plaintiff, he sold the property to the vendor of the defendants as per Ext.A1 excluding a 'U' portion that is halfportion of the well. In Ext.A1 there is specific recital that on the southern boundary of the property a small portion of land in 'U' shape is left for the purpose of well. The said 'U' shape portion is separated by wall and does not form part of it. As per trial court 12 C.M.Appl.No.1058 of 2016 in R.S.A.No.1316 of 2016 & R.S.A.No.1316 of 2016 judgment first defendant during cross examination admitted that plaintiff sold the property to Gafoor after excluding 'U' portion of the well. The first appellate court also found that the report and evidence of commissioner would show that half portion of the well is situated in the property of the plaintiff and since he has reserved his right over the property in which half portion of the well is situated he has the right to use the same and defendants cannot interfere with the peaceful use of the same. So ultimately the suit filed by the plaintiff seeking for a permanent injunction restraining the defendants and anybody under them from causing any damage to the plaint schedule property and the well and from polluting the water in the well or obstructing the nylon net cover or otherwise to cause interference with the use and enjoyment thereof was concurrently found in favour of the plaintiff. Hence, no substantial question of law also emerges for consideration. In the result, I find that the petitioners/defendants could not offer any sufficient cause to condone the long delay of 619 days in filing the appeal. Hence the petition is dismissed. C.M.Appl.No.1058 of 2016 in R.S.A.No.1316 of 2016 & R.S.A.No.1316 of 2016 **==> picture [14 x 8] intentionally omitted <==** ## R.S.A .: In view of the dismissal of delay condonation petition (C.M.Appl.No.1058 of 2016), R.S.A is also dismissed. Sd/- **M.R.ANITHA** shg/ **JUDGE**