Pathrose v. Baby (RSA No. 83 of 2023)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 7[TH] DAY OF FEBRUARY 2024/18TH MAGHA, 1945** **RSA NO. 83 OF 2023** **AGAINST THE JUDGMENT AND DECREE IN A.S.NO.8/2022 OF SUB COURT,** **PERUMBAVOOR** **AGAINST THE JUDGMENT AND DECREE IN O.S.NO.250/2014 OF MUNSIFF COURT, PERUMBAVOOR** ## **APPELLANT/APPELLANT/PLAINTIFF:** **PATHROSE AGED 65 YEARS, S/O. DEVASSY, MANIYACHERY VEETIL, AIMURY KARA, KOOVAPPADY VILLAGE., PIN - 683544** **BY ADVS. ANOOP KRISHNA P.CHANDRASEKHAR ANAND SANKAR REGIMOL M.K. RANI MADHU** ## **RESPONDENT/RESPONDENT/DEFENDANT:** **[BABU], (NAME CORRECTED) 'BABY' AGED 57 YEARS S/O. DEVASSY, MANIYACHERY VEETIL, AIMURY KARA, KOOVAPPADY VILLAGE,PIN-683544. (THE NAME OF THE RESPONDENT IS CORRECTED AS 'BABY' AS PER ORDER DATED 20.06.2023 IN IA.NO.1/2023.)** **BY ADVS. BOBY THOMAS WINSTON K.V** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON** **07.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA NO. 83 OF 2023** **2** ## **JUDGMENT** Dated this the 7[th] day of February, 2024 This regular second appeal has been filed under Section 100 read with Order XLII Rule 1 of the Code of Civil Procedure, 1908. 2. This regular second appeal arises out of the decree and judgment dated 26.10.2022 in A.S.No.8/2022 on the files of the Sub Court, Perumbavoor, whereby the learned Sub Judge dismissed I.A.No.1/2022, delay petition, filed to condone delay of 1303 days in filing the first appeal and in consequence thereof, dismissed the appeal, being time barred. 3. Heard. Perused the relevant records. 4. I shall refer the parties in this regular second appeal as 'plaintiff' and 'defendant' for convenience. 5. In this matter, suit filed by the appellant as plaintiff in O.S.No.250/2014 for declaration, partition and permanent **RSA NO. 83 OF 2023** **3** prohibitory injunction was dismissed by the learned Munsiff, Perumbavoor on 20.08.2016. Thereafter, the plaintiff filed the first appeal as A.S.No.8/2022, admittedly, with a delay of 1303 days. But the learned Sub Judge, as per order dated 26.10.2022, dismissed the delay petition and consequently, appeal also dismissed, holding that no sufficient cause shown to condone a long delay of 1303 days. 6. According to the learned counsel for the plaintiff, the illness of the plaintiff is the reason shown to condone the delay and the first appellate court failed to take note of the above and wrongly dismissed the delay petition. Therefore, the same may be set aside with an opportunity for the plaintiff to pursue his relief before the first appellate court. 7. The learned counsel for the defendant would submit that the delay sought to be condoned in I.A.No.1/2022 in A.S.No.8/2022 before the first appellate court could not be condoned for any reasons since during the period of delay, the plaintiff has been continuing with O.S.Nos.34/2016 and **RSA NO. 83 OF 2023** **4** 304/2017 pending before the Munsiff's Court, Perumbavoor, against the defendant vigilantly. It is also submitted that in E.P.99/2017 before the Munsiff's Court, Perumbavoor, the plaintiff appeared and conducted the execution petition through his counsel without any hesitation. 8. The first appellate court dismissed the application as stated in paragraph Nos.7 and 8 of the order and the same is as under: _“7. At the time of argument, counsel for petitioner has not denied the fact that, O.S.No.34/2016 pending before Munsiff Court, Perumbavoor filed by petitioner herein was conducted by the petitioner herein through his counsel. Petitioner has not challenged the contention that, respondent herein filed O.S.304/2017 before Munsiff Court, Perumbavoor against the petitioner herein and the same is being conducted by him. As stated above, respondent has contended that, he filed E.P.99/2017 before Munsiff Court, Perumbavoor and in the same, petitioner has appeared and he is conducting the same as well as filed work_ **RSA NO. 83 OF 2023** **5** _memo at the time of measurement of properties by the surveyor as well as the properties were measured as per the work memo of the petitioner herein and all these facts were unchallenged by the counsel for the petitioner herein at the time of argument. In considering all these facts, it is very much clear that, petitioner was capable to file the appeal within time, but, he omitted to do so. The reasons stated by petitioner herein that, he is suffering from several diseases and he could not instruct the counsel can be found to be false._ _8. Another significant fact is that, petitioner has stated that, there is only a delay of 1303 days in filing the appeal and he is entitled to get the benefit of extension of limitation ordered by Hon'ble Supreme Court from 15-3-2020 till 28-2-2022 and hence, there is only a delay of 1303 days. Significantly, the limitation period for filing the appeal was already expired before 15-3-2020 and hence, it cannot be said that, petitioner is entitled to get the benefit of enlargement of period of limitation allowed by the Hon'ble Supreme Court. Only if the period of limitation was not expired on 15-3-2020, petitioner can claim the benefit granted by the Hon'ble_ **RSA NO. 83 OF 2023** **6** _Supreme Court. The benefit granted by the Hon'ble Supreme Court cannot be extended to the delay occurred in filing the appeal. In the said circumstances, it is only to be held that, there is a delay of 1980 days in filing the appeal and the allegation of petitioner that, there was only a delay of 1303 days in filing the appeal is only to be discarded.”_ 9. Going by the order, the finding of the first appellate court is that the plaintiff failed to show sufficient cause to condone the delay, as affirmed in the affidavit in support of I.A.No.1/2022. The first appellate court rightly taken note of the fact that he had conducted other cases vigilantly as stated in paragraph No.7 of the order as hereinabove extracted. It was also found by the first appellate court that the actual delay is 1980 days and there is miscalculation in the period of delay as well. 10. Though the learned counsel for the plaintiff reiterated the contentions urged before the first appellate court with a view to get 1980 days delay condoned, on **RSA NO. 83 OF 2023** **7** perusal of the affidavit in support of the petition, it could be gathered that 'no sufficient reasons' stated to condone the long delay in filing the appeal as discussed hereinabove. In this context, it is apposite to extract Section 5 of the Limitation Act, 1963 and the same is as follows: ## _**“5. Extension of prescribed period in certain cases**_ _Any appeal or any application, other than an application under any of the provisions or Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.”_ 11. It is true that “sufficient cause” is the decisive factor while condoning the delay. Though it has been settled that liberal view should be taken while condoning delay, it is equally settled that when the delay sought to be condoned on account of any dilatory tactics without bonafides, with **RSA NO. 83 OF 2023** **8** deliberate inaction or negligence, such a concession also is not possible. In this connection, it is relevant to refer the latest decision of the Apex Court in **Majji Sannemma alias Sanyasirao v. Reddy Sridevi and Others** reported in **AIR 2022 SC 332** , wherein the Apex Court considered condonation of delay of 1011 days. In the said judgment, the Apex Court relied on the decision in **P.Ramachandran v. State of Kerala and Anr.** reported in **(1997) 7 SCC 556,** wherein condonation of delay of 565 days was refused and held in paragraph No.7 to 8 are as under: - _“7. At this stage, a few decisions of this Court on delay in filing the appeal are referred to and considered as under:_ - _7.1 In the case of Ramlal, Motilal and Chhotelal v.Rewa Coalfields Ltd. (AIR 1962 SC 361), it is observed and held as under: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_ **RSA NO. 83 OF 2023** **9** _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, (1890) J.L.R. 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 words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no_ **RSA NO. 83 OF 2023** **10** _negligence nor inaction nor want of bona fide is imputable to the appellant."_ _7.2 In the case of P.K. Ramachandran v. State of Kerala and Anr. (AIR 1998 SC 2276), while refusing to condone the delay of 565 days, it is observed that in the absence of reasonable, satisfactory or even appropriate explanation for seeking condonation of delay, the same is not to be condoned lightly. It is further observed that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. It is further observed that while exercising discretion for condoning the delay, the court has to exercise discretion judiciously._ - _7.3 In the case of Pundlik Jalam Patil V. Executive Engineer [(2008) 17 SCC 448], it is observed as under:_ - _"The laws of limitation are founded on public policy. Statutes of limitation are sometimes described as "statutes of peace". An unlimited and perpetual threat of limitation creates_ **RSA NO. 83 OF 2023** **11** _insecurity and uncertainty; some kind of limitation is essential for public order. The principle is based on the maxim "interest reipublicae ut sit finis litium", that is, the interest of the State requires that there should be end to litigation but at the same time laws of limitation are a means to ensure private justice suppressing fraud and perjury, quickening diligence and preventing oppression. The object for fixing timelimit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy”._ _7.4 In the case of Basawaraj and Anr V. Special Land Acquisition Officer (AIR 2014 SC 746), it is observed and held by this Court that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case. It is further observed that the expression "sufficient_ **RSA NO. 83 OF 2023** **12** _cause" cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party. It is further observed that even though limitation may harshly affect rights of a party but it has to be applied with all its rigour when prescribed by statute. It is further observed that in case a party has acted with negligence, lack of bona fides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. It is observed that each application for condonation of delay has to be decided within the framework laid down by this Court. It is further observed that if courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to legislature._ _7.5 In the case of Pundlik Jalam Patil (supra), it is observed by this Court that the court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The Courts help those who are vigilant and "do not slumber over their rights"._ **RSA NO. 83 OF 2023** **13** _8. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and considering the averments in the application for condonation of delay, we are of the opinion that as such no explanation much less a sufficient or a satisfactory explanation had been offered by respondent Nos.1 and 2 herein - appellants before the High Court for condonation of huge delay of 1011 days in preferring the Second Appeal. The High Court is not at all justified in exercising its discretion to condone such a huge delay. The High Court has not exercised the discretion judiciously. The reasoning given by the High Court while condoning huge delay of 1011 days is germane. Therefore, the High Court has erred in condoning the huge delay of 1011 days in preferring the appeal by respondent Nos. 1 and 2 herein-original defendants. Impugned order passed by the High Court is unsustainable both, on law as well as on facts.”_ 12. In view of the matter, it has to be held that the first appellate court rightly dismissed I.A.No.1/2022, seeking **RSA NO. 83 OF 2023** **14** condonation of delay of 1303 days, (actually 1980 days) since the plaintiff failed to justify 'sufficient cause' to condone the delay. In view of the matter, the above order is only to be confirmed and no substantial question of law also arose in the facts and circumstances of the case. Therefore, this regular second appeal is dismissed refusing admission. All interlocutory applications pending in this regular second appeal stand dismissed. Registry shall inform this matter to the trial court as well as the appellate court forthwith. **Sd/A. BADHARUDEEN JUDGE** nkr