Pushparajan v. Purushothaman

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **FRIDAY, THE 4TH DAY OF APRIL 2014/14TH CHAITHRA, 1936** **RSA.No. 411 of 2014 ()** **----------------------JUDGMENT & DECREE DATED 20.3.2014 IN I.A. NO. 2037/2012 IN AS 34/2012 OF SUB COURT, ATTINGAL JUDGMENT DATED 27.8.2011 IN OS 205/2008 OF MUNSIFF'S COURT, ATTINGAL --------------------** **APPELLANT : (APPELLANT/PLAINTIFF)** **----------------------------------------------------------** **PUSHPARAJAN, AGED 66 YEARS S/O. NEELAKANTAN, SUMANGALATHU VEEDU, THOTTAKKADU KARAVARAM VILLAGE, CHIRAYINKEEZHU TALUK THIRUVANANTHAPURAM DISTRICT.** **BY ADV. SRI.M.R.RAJESH** **RESPONDENT: (RESPONDENT/DEFENDANT)** **-----------------------------------------------------------------** **PURUSHOTHAMAN, AGED 74 YEARS S/O. NEELAKANTAN, SAI SREE BUILDINGS, SANTHIGIRI THOTTAKKADU, KARAVARAM VILLAGE, CHIRAYINKEEZHU TALUK THIRUVANANTHAPURAM DISTRICT.** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04-04-2014, ALONG WITH RSA. 412/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...2/-** ## **RSA.No. 411 of 2014 ()** ## **APPENDIX** ## **PETITIONERS' ANNEXURES :** **ANNEXURE A : CERTIFIED COPY OF THE COMMON ORDER DATED 20.3.2014 IN IA NO. 2037/2012 IN AS NO. 34/2012 AND IA NO. 2038/2012 IN AS NO. 35/2012 OF SUB COURT, ATTINGAL.** ## **RESPONDENT'S ANNEXURES : NIL** **//TRUE COPY//** **P.S. TO JUDGE** **Mn** ## **P.BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. Nos. 411 & 412 of 2014 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 04[th] day of April, 2014 ## **J U D G M E N T** Two suits namely O.S.Nos. 351/2008 and 205/2008 were disposed of by the Munsiff Court, Attingal by a common judgment. Out of the two suits, O.S.No. 351/2008 was one filed by the landlord for eviction of the tenant and O.S.No.205/2008 was filed by the tenant against forceful eviction. O.S.No.351/2008 was decreed and O.S.No.205/2008 was dismissed. 2. The aggrieved person sought to file appeals long after the period for filing the appeal was over. There was delay of 392 days in filing the appeal. He filed a petition to condone the delay and produced the medical certificate also. The court below was unimpressed by the reason given for condonation of delay and accordingly, dismissed the delay condonation petitions and consequently, the two appeals were also dismissed. It is against the order of **-2-** ## **R.S.A. Nos. 411 & 412 of 2014** dismissal of the appeals consequent on the order dismissing the delay condonation petitions, these appeals are filed. 3. The learned counsel appearing for the appellant contended that the court below was not justified in dismissing the delay condonation petition especially after it had found that he was under the treatment of the doctor concerned who was examined as PW2 and medical certificate by him as Ext.P2 are acceptable in evidence. The only reason given is that if the petitioner could walk to the doctor for his treatment, he could as well go to the advocate's office to make arrangements for filing the appeal. This according to the learned counsel, is an unkind approach and as long as his case that he was suffering from illness for which he was being treated was accepted in all fairness he should have given an opportunity to have the appeal heard on merits. 4. The learned counsel appearing for the respondent on the other hand contended that it is yet another dilatory ## **R.S.A. Nos. 411 & 412 of 2014** **-3-** tactics adopted by the appellant to drag on the proceedings and to see that the landlord is kept at bay. The landlord is only getting a meager rent from the property and that too is in arrears from 2008 onwards. There is no bona fide in the petition to condone the delay and the court below rightly dismissed the same. The learned counsel also highlighted the fact that in the reply notice sent i.e., the notice terminating tenancy, the only ground urged was for granting of some time. That shows that there is no sustainable contention that could be raised by the tenant. Hence, it is pointed out that no grounds are made out to interfere with the order of the court below. 5. Though it is said that sufficient cause has to be shown to condone the delay in filing the appeal, it is by now well settled that the approach shall not be a pedantic one, but shall be a liberal approach keeping in view that justice shall not be a casualty. The pristine theory of explaining every days delay has been given a go-by and issue has to be ## **R.S.A. Nos. 411 & 412 of 2014** **-4-** viewed in the larger perspective by rendering justice. The decision reported in **Esha Bhattacharjee v. Managing Committee of Reghunathpur Nafar Academy and Others** [AIR 2014 Supreme Court (Civil) 67] highlights the various aspects regarding the condonation of delay and the approach that has to be made by the courts. The Apex Court has cautioned that while condonation of delay is not a matter of course, it shall not also be a weapon to deny rights of the parties resulting in injustice. The Apex Court has laid down the criterion to be applied in such cases. The Apex Court has cautioned that the courts shall not begin with the presumption that the delay was deliberately caused. Normally, a person who suffers a decree would not venture to have the appeal filed with a delay condonation petition running the risk of having the delay petition dismissed as well as the appeal. Normally, the reason may be sufficient. But there may be circumstances where it can be easily seen that it is only a dilatory tactics in order to see that the ## **R.S.A. Nos. 411 & 412 of 2014** **-5-** decree holder is kept at bay and to deny the execution of decree. 6. In the case on hand, the suit filed by the tenant i.e., O.S.No.205/2008 from which R.S.A.No.411/2014 arises, was one for injunction restraining the defendant in the suit who is the plaintiff in O.S.No.351/2008 from forcefully evicting him. He did not mount the box and that suit happened to be dismissed. O.S.No.351/2008 was filed by the landlord for eviction of the tenant. Therefore, it is clear that the apprehension expressed by the tenant of forceful eviction is misplaced. The landlord had taken recourse of law to evict the tenant. Therefore, nothing survives for consideration in O.S.No.205/2008. R.S.A.No.411/2014 thus filed against the judgment and decree in O.S.No.205/2008 is unnecessary. 7. Coming to the appeal against the judgment and decree in O.S.No.351/2008, the court below has found that the evidence given by the doctor who is examined as PW2 ## **R.S.A. Nos. 411 & 412 of 2014** **-6-** who issued Ext.P2 certificate is acceptable and that there is basis to believe that the person concerned was under the treatment of the doctor. Then the court below goes on to consider that if the patient could walk to the doctor, he could as well go to the counsel to make arrangements for filing the appeal and on that ground, dismissed the petition. 8. That approach, as rightly noticed by the learned counsel for the appellant, was quite unkind. The tenant has raised certain contention in the written statement regarding the nature of arrangement under which he was in possession of the property. Whether that is justifiable or it could be established is the different question. 9. True, he lost before the trial court. But one must remember that the lower court is the final authority on facts and depriving the defeated party of the only forum where he can agitate his claim on facts could be harsh and may even amount to injustice. ## **R.S.A. Nos. 411 & 412 of 2014** **-7-** 10. At the same time, the interest of the landlord also will have to be protected. He is a person who had let out the property for a meager rent. It is pointed out that rent amounts are in arrears from 2008 onwards. The trial court has calculated the arrears as 4,950/- and also awarded₹ damages for use and occupation of the rented premises at the rate of 450/- per month from the date of the suit till the₹ recovery of the shop room. 11. On the pretext that an appeal is sought to be filed and delay is sought to be condoned, obviously the tenant cannot keep the rent in arrears. He is bound to pay the rent as there is no dispute regarding the rate of rent at all. It is an admitted fact that rent was 450/- per month.₹ 12. Considering the rival contentions and also the rights involved of the parties, it is felt that an opportunity ought to be given to the tenant to agitate his claim before the lower appellate court. As rightly pointed out by the learned counsel for the appellant, that is the final forum on ## **R.S.A. Nos. 411 & 412 of 2014** **-8-** facts. It is true that in the reply notice, the only prayer made by the tenant was for extension of time to vacate. But the written statement filed in the suit takes up other contentions also. 13. It is therefore felt proper to give the appellant an opportunity to agitate his rights before the lower appellate court subject to the condition that he deposits the arrears of rent as assessed by the trial court and also continuous to pay the rent as due for every month. 14. It is made clear that the dismissal of R.S.A. No. 411/2014 will have no impact in determining the issue involved in A.S.No.35/2012 which arises from O.S.No. 351/2008. In the result, this R.S.A.No.412/2014 is allowed. The order in I.A.No. 2038/2012 is set aside and the lower appellate court is directed to take the appeal on file and dispose it of on merits subject to the condition that the tenant deposits the arrears of rent decreed within a period ## **R.S.A. Nos. 411 & 412 of 2014** **-9-** of **one month** from today and also continuous to pay the rent at the rate of 450/- on or before 10₹ th of every month till the disposal of the appeal. The appeal shall be disposed of within three months from the date of re-opening of the court after vacation. Sd/- **P.BHAVADASAN JUDGE** ds //True Copy// P.A. To Judge