P.S. Jameela v. Muhammed Basheer (dead) through his legal representatives

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 5[TH] DAY OF JANUARY 2023 / 15TH POUSHA, 1944** **REVIEW PETITION NO. 778 OF 2021 AGAINST THE JUDGMENT DATED 17.09.2012 IN Mat.Appeal NO.507 OF 2010 OF THE HIGH COURT OF KERALA** ## **REVIEW PETITIONER:** **P.S.JAMEELA, AGED 60 YEARS, W/O. MUHAMMED BASHEER, THOTTUPURATHUVEEDU, PLANCHUVADU, VENGALLOOR P.O., THODUPUZHA.** **BY ADVS. P.A.NOOR MUHAMED S.GIFFARA BILAL NIAMATHULLA** ## **RESPONDENTS:** **MUHAMMED BASHEER (DEAD), S/O MUHAMMED ALI, THOTTUPURATHUVEEDU, PLANCHUVADU, VENGALLOOR P.O., THODUPUZHA, THROUGH:-** - **1 MUHAMMED SHERIF, CHARUVILPURAYIDATHIL HOUSE, VAKAYAR P.O., KONNI, PATHANAMTHITTA-689 691, KERALA.** - **2 AISHA SAJI W/O.SAJI GEORGE, MANJATTETHU HOUSE, PERINGAVU, THRISSUR-680 008, KERALA.** - **3 SULEKHA M.I. W/O.DR.M.SAJAN, CHARUVILPURAYIDATHIL HOUSE, VAKAYAR P.O., KONNI, PATHANAMTHITTA-689 691.** **BY ADVS. C.K.VIDYASAGAR** - **P.CHANDY JOSEPH** 2 ## R.P.No.778 of 2021 in Mat.Appeal No.507 of 2010 and R.P.No.1279 of 2022 in Mat.Appeal No.580 of 2010 **THIS REVIEW PETITION HAVING COME UP FOR FINAL HEARING ON 22.12.2022, ALONG WITH RP.1279/2022, THE COURT ON 05.01.2023 DELIVERED THE FOLLOWING:** 3 R.P.No.778 of 2021 in Mat.Appeal No.507 of 2010 and R.P.No.1279 of 2022 in Mat.Appeal No.580 of 2010 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 5[TH] DAY OF JANUARY 2023 / 15TH POUSHA, 1944 RP NO. 1279 OF 2022** **AGAINST THE JUDGMENT DATED 17.09.2012 IN Mat.Appeal** **NO.580 OF 2010 OF HIGH COURT OF KERALA** **REVIEW PETITIONER:** **P.S.JAMEELA AGED 60 YEARS, W/O. MUHAMMED BASHEER, THOTTUPURATHUVEEDU, PLANCHUVADU, VENGALLOOR P.O., THODUPUZHA.** **BY ADVS. P.A.NOOR MUHAMED S.GIFFARA BILAL NIAMATHULLA** **RESPONDENTS:** **MUHAMMED BASHEER (DEAD) THROUGH:- MUHAMMED SHERIF S/O. MUHAMMED ALI, THOTTUPURATHUVEEDU, PLANCHUVADU, VENGALLOOR P.O., THODUPUZHA. THROUGH:** - **1 P. MUHAMMED SHERIF, CHARUVILPURAYIDTHIL HOUSE, VAKAYAR PO, KONNI, PATHANAMTHITTA-689691, KERALA.** - **2 AISHA SAJI, W/O. SAJI GEORGE, MANJATTETHU HOUSE, PERINGAVU, THRISSUR-680008, KERALA.** 4 ## R.P.No.778 of 2021 in Mat.Appeal No.507 of 2010 and R.P.No.1279 of 2022 in Mat.Appeal No.580 of 2010 - **3 SULEKHA M.I.,** **W/O. DR M SAJAN, CHARUVILPURAYIDTHIL HOUSE, VAKAYAR PO, KONNI, PATHANAMTHITTA-689691.** **BY ADVS.** **C.K.VIDYASAGAR** **P.CHANDY JOSEPH** **THIS REVIEW PETITION HAVING COME UP FOR FINAL HEARING ON 22.12.2022, ALONG WITH RP.778/2021, THE COURT ON 05.01.2023 DELIVERED THE FOLLOWING:** 5 R.P.No.778 of 2021 in Mat.Appeal No.507 of 2010 and R.P.No.1279 of 2022 in Mat.Appeal No.580 of 2010 ## **ANIL K. NARENDRAN & P.G. AJITHKUMAR, JJ.** **----------------------------------------------------------R.P.No.778 of 2021 in Mat.Appeal No.507 of 2010 & R.P.No.1279 of 2022 in Mat.Appeal No.580 of 2010 ----------------------------------------------------------------------Dated this the 5[th] day of January, 2023** ## **O R D E R** ## P.G.Ajithkumar, J. C.M.Appl.No.1 of 2021 in R.P.No.778 of 2021 in Mat.Appeal No.507 of 2010 and C.M.Appl.No.1 of 2022 in R.P.No.1279 of 2022 in Mat.Appeal No.580 of 2010 Both these matters relate to a common judgement. Therefore, these petitions are considered together. 2. These C.M.Applications are filed seeking to condone the delay of 9 years and 63 days in filing the review petitions. In C.M.Appl.No.1 of 2021 in R.P.No.778 of 2021, the period of delay stated in the petition is 2645 days, whereas in the affidavit it is stated as 9 years and 63 days. Taking the delay as 9 years and 63 days, which is correct going by the calculation, we proceed to consider these applications. 3. The petitioner is the divorced wife of Sri. Mohammed Basheer. He had filed O.P.No.83 of 2007 6 ## R.P.No.778 of 2021 in Mat.Appeal No.507 of 2010 and R.P.No.1279 of 2022 in Mat.Appeal No.580 of 2010 before the Family Court, Thodupuzha seeking a decree of declaration of title and possession and consequential reliefs. That O.P. was allowed in part and title of Sri.Muhammed Basheer to the immovable property was declared while relief of declaration with respect to the movable property was declined. The petitioner-wife filed Mat.Appeal No.507 of 2010 and Sri.Mohammed Basheer-husband filed Mat.Appeal No.580 of 2010. This Court dismissed Mat.Appeal No.507 of 2010 and allowed Mat.Appeal No.580 of 2010 as per a common judgment dated 17.09.2012. The petitioner filed S.L.P.(C) Nos.14269-14270 of 2013 before the Apex Court. Those Special Leave Petitions were dismissed on 18.01.2016. Review Petition (Civil) No.4428 of 2021 was filed by the petitioner before the Apex Court and the same was dismissed on 20.07.2021. Sri.Muhammed Basheer died in the meantime on 24.07.2015. His legal representatives came on record, who are the respondents herein. 4. The petitioner now has filed these petitions for condoning the delay of 9 years and 63 days in filing the review petitions. She would contend that after dismissal of 7 ## R.P.No.778 of 2021 in Mat.Appeal No.507 of 2010 and R.P.No.1279 of 2022 in Mat.Appeal No.580 of 2010 S.L.Ps. filed by her, she had to contest eight cases before different courts. Three cases before the Family Court, Thodupuzha, three cases before this Court and two cases before the Apex Court. Her husband died in the meantime. For want of proper legal advice, she could not file the present review petitions in time. For such reasons, the petitioner seeks to condone the delay. 5. The 3[rd] additional respondent filed a counter affidavit on her behalf and on behalf of other respondents. Besides, denying the contentions of the petitioner in support of her plea for review, the respondents refuted the reasons stated for the delay. It is alleged that the petitioner herself had preferred most of the cases she mentioned in her affidavit and therefore that cannot be a reason for the delay. A person who filed such cases cannot claim that she did not get proper legal advice. Mat. Appeal No.208 of 2017 was filed by the petitioner before this Court against the order of the Family Court, Thodupuzha, in O.P.No.53 of 2016. That appeal along with a connected case O.P.No.148 of 2017 were heard. The appeal was dismissed. Challenging that judgment the 8 ## R.P.No.778 of 2021 in Mat.Appeal No.507 of 2010 and R.P.No.1279 of 2022 in Mat.Appeal No.580 of 2010 petitioner preferred S.L.Ps.No.12836-12837 of 2020 before the Apex Court. While so, the petitioner filed another Revision Petition as R.P.No.4428 of 2021 in S.L.Ps.No.14269-14270 of 2016, which was dismissed on 20.07.2021. Pointing out such aspects the respondents contended that these petitions for condonation of delay are filed without any bona fides. 6. Heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the respondents. 7. The point requires consideration is whether the cause shown by the petitioner is sufficient to condone the delay of 9 years and 63 days. 8. The essential reasons urged for the delay are that the petitioner had to prosecute or defend eight other cases in different fora and that her husband died in the meanwhile. Mat.Appeal Nos.507 and 580 of 2010, in which these Revision Petitions arose, were disposed of on 17.09.2012. The petitioner has filed S.L.P.(C) Nos.1426914270 of 2013 before the Apex Court challenging that common judgement. The petitioner duly had pursued the 9 ## R.P.No.778 of 2021 in Mat.Appeal No.507 of 2010 and R.P.No.1279 of 2022 in Mat.Appeal No.580 of 2010 said Special Leave Petitions, however, the same were dismissed on 18.01.2016. The husband of the petitioner died on 24.07.2015. 9. It may be noted that these litigations were fought between the petitioner and her husband, Sri.Muhammed Basheer till his death. After the death, the litigations continued between the petitioner and the legal representatives of Sri.Muhammed Basheer. Marriage between the petitioner and Sri.Muhammed Basheer was dissolved by way of Talaq much earlier. Disputes, which are the subject matter of these litigations, ignited after the divorce. The petitioner and Sri.Muhammed Basheer ever thereafter have been on loggerheads. Whileso, her divorced husband died. In such circumstances, the petitioner cannot be heard to contend that on account of the death of her husband, she was prevented from prosecuting or defending the litigations to which she was a party. 10. After the death of Sri.Muhammed Bahseer on 24.07.2015, the petitioner has filed O.P.(FC) No.429 of 2017 and Mat.Appeal No.208 of 2017 before this Court and S.L.P. 10 ## R.P.No.778 of 2021 in Mat.Appeal No.507 of 2010 and R.P.No.1279 of 2022 in Mat.Appeal No.580 of 2010 (C) Nos.12836-12837 of 2020 before the Apex Court. When she was capable of filing those cases, besides defending the cases pending before the Family Court, Thodupuzha, there could not have any disabling circumstances for her to file these review petitions during the said period. 11. The review petitions filed by the petitioners in S.L.P.(C) Nos.14269-14270 of 2013 were dismissed by the Apex Court on 18.01.2016. Possibly, she may contend that the requirement of filing these review petitions arose only after dismissing the second review petition filed by her before the Apex Court in S.L.P.(C) Nos.14269-14270 of 2013, which was on 20.07.2021. It is pertinent to note that the said second Review Petition was filed only in the year 2021. Since S.L.P.(C) Nos.14269-14270 of 2013, were dismissed as early as on 18.01.2016 and these Review Petitions were filed only on 25.10.2021, the petitioner is obligated to explain the delay in between satisfactorily. 12. After dismissal of S.L.P.(C) Nos.14269-14270 of 2013 on 18.01.2016, the petitioner found enough time for prosecuting or defending other litigations which are 11 ## R.P.No.778 of 2021 in Mat.Appeal No.507 of 2010 and R.P.No.1279 of 2022 in Mat.Appeal No.580 of 2010 mentioned in her affidavit. From the averments in the affidavit it is seen that there was another round of litigation between herself and the legal representatives of Sri.Muhammed Basheer relating to the same properties. In regard to the orders of the Family Court, Thodupuzha in that case, namely, O.P.No.53 of 2016, the petitioner has filed Mat.Appeal No.208 of 2017 and O.P.(FC) No.429 of 2017 before this Court. When she failed, Special Leave Petitions were filed before the Apex Court. In the meantime, she filed review petitions against the order of dismissal in earlier S.L.Ps., S.L.P.(C) Nos.1426914270 of 2013. The second review petition was dismissed on 20.07.2021. From the aforesaid facts, it is evident that the attempt of the petitioner is to give a new lease of life to the litigations after a long drawn battle regarding the same subject matter and a long delay of 9 years and 63 days. 13. In **Collector, Land Acquisition v. Katiji [(1987) 2 SCC 107]** , in the context of Section 5 of the Limitation Act, 1963, the Apex Court held that, the expression ‘sufficient cause’ employed by the legislature is adequately elastic to enable the courts to apply the law in a 12 ## R.P.No.778 of 2021 in Mat.Appeal No.507 of 2010 and R.P.No.1279 of 2022 in Mat.Appeal No.580 of 2010 meaningful manner, which subserves the ends of justice, that being the life-purpose for the existence of the institution of Courts. 14. In **Esha Bhattacharjee v. Raghunathpur Nafar Academy [(2013) 12 SCC 649]** the Apex Court while summarising the principles applicable while dealing with an application for condonation of delay held that, the concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. The Apex Court held further 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. Para.21 of the judgment reads thus; - “21. From the aforesaid authorities the principles that can broadly be culled out are: - 21.1 There should be a liberal, pragmatic, justiceoriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged 13 R.P.No.778 of 2021 in Mat.Appeal No.507 of 2010 and R.P.No.1279 of 2022 in Mat.Appeal No.580 of 2010 to remove injustice. 21.2 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. 21.3 Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. 21.4 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. 21.5 Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.6 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. 21.7 The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. 21.8 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. 14 ## R.P.No.778 of 2021 in Mat.Appeal No.507 of 2010 and R.P.No.1279 of 2022 in Mat.Appeal No.580 of 2010 21.9 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 be given a total go by in the name of liberal approach. 21.10 If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. 21.11 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. 21.12 The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. 21.13 The State or a public body or an entity representing a collective cause should be given some acceptable latitude.” [underlines supplied] ## 15. In **Rafeek and another v. K. Kamarudeen and** **another [2021 (4) KHC 34]** a Division Bench of this Court held that, though the expression ‘sufficient cause’ employed in Section 5 of the Limitation Act, 1963 is adequately elastic to 15 ## R.P.No.778 of 2021 in Mat.Appeal No.507 of 2010 and R.P.No.1279 of 2022 in Mat.Appeal No.580 of 2010 enable the courts to apply the law in a meaningful manner, which subserves the ends of justice, as held by the Apex Court in **Katiji [(1987) 2 SCC 107]** , the concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play, as held by the Apex Court in **Esha Bhattacharjee [(2013) 12 SCC 649]** . Inordinate delay, which attracts doctrine of prejudice, warrants strict approach, whereas, a delay of short duration or few days, which may not attract doctrine of prejudice, calls for a liberal delineation. 16. In the light of the law laid down in the aforesaid decisions, when a delay of long duration is sought to be condoned, a strict approach is required. Further, the prejudice that may be caused to the opposite party is a relevant consideration. The learned counsel appearing for the petitioner, however, tried to persuade us to take a lenient view in the matter for which he pointed out the reason that the petitioner is a hapless widow and that the cause of justice requires a fresh decision in the matter so that the errors occurred while rendering the common judgement dated 16 ## R.P.No.778 of 2021 in Mat.Appeal No.507 of 2010 and R.P.No.1279 of 2022 in Mat.Appeal No.580 of 2010 ## 17.09.2012 can be rectified. He has placed reliance in this respect in **Collector, Land Acquisition, Anantnag** (supra) where the Apex Court held,- “The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose 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.” 17. Applying the said principles also, it cannot be said that sufficient explanation is shown by the petitioner for condoning the delay of 9 years and 63 days. The petitioner had been pursuing several litigations before various courts, including the Apex Court. Therefore, it cannot be said at all that the petitioner was not in a position to file these review petitions in time. 18. Yet another reason pointed out is that she obtained proper legal advice only later. A person, who fought a series of litigations before various courts, including the Apex Court, 17 ## R.P.No.778 of 2021 in Mat.Appeal No.507 of 2010 and R.P.No.1279 of 2022 in Mat.Appeal No.580 of 2010 cannot fall upon the excuse that she did not get proper legal advice. A vague statement in the affidavit that she could not obtain proper advice regarding the possible legal remedy cannot be reckoned as reason sufficient to condone the inordinate delay occurred in this case. Taking all such aspects into consideration, we are of the view that the cause shown by the petitioner is absolutely insufficient to condone the delay. These petitions are accordingly dismissed. R.P.Nos.778 of 2021 in Mat.Appeal No.507 of 2010 and R.P.No.1279 of 2022 in Mat.Appeal No.580 of 2010 Since the C.M.Applications are dismissed, these Review Petitions are also dismissed. **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr