Ravikumar v. Sivathanu

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 14[TH] DAY OF FEBRUARY 2023 / 25TH MAGHA, 1944 OP(C) NO. 1217 OF 2022 ``` ``` AGAINST THE JUDGMENT IN CMA 5/2021 OF SUB COURT,NEYYATTINKARA R.P NO.116/2020 AND I.A. NO.1/2020 IN OS 339/2013 OF PRINCIPAL ``` ## **`MUNSIFF COURT ,NEYYATTINKARA`** ## **`PETITIONER/APPELLANT/COUNTER CLAIM DEFENDANT:`** ``` RAVIKUMAR AGED 62 YEARS S/O. RAJASEKHARAN, SIVALAYAM, OTTATHERUVU, ATHIYANNOOR VILLAGE, BALARAMAPURAM, THIRUVANANTHAPURAM, PIN - 695501 ``` ``` BY ADVS. K.K.DHEERENDRAKRISHNAN N.P.ASHA ``` ## **`RESPONDENT/RESPONDENT/COUNTER CLAIM PLAINTIFF:`** ``` 1SIVATHANU S/O. ARUCHALAM, NARAYANI VILASOM, VARUVILAKATHU VEEDU, OTTATHERUVU, ATHIYANNOOR VILLAGE, RAMAPURAM, THIRUVANANTHAPURAM - PIN - 695501 ``` ``` ADDL R2RATNAM.V. W/O LATE SIVATHANU, AGED 70, RESIDING AT HOUSE NO.8/420, EAST LANE, SINGLE STREET, BALARAMAPURAM P.O., BALARAMAPURAM VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM, PIN 695501 ``` ``` ADDL R3ANUSHA KRISHNAN, AGED 43, D/O LATE SIVATHANU, RESIDING AT HOUSE NO.8/420, EAST LANE, SINGLE STREET, BALARAMAPURAM P.O., BALARAMAPURAM VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM, PIN 695501 ``` ``` ADDL R4ASOK.S. AGED 41, S/O LATE SIVATHANU, RESIDING AT HOUSE NO.8/420, EAST LANE, SINGLE STREET, BALARAMAPURAM P.O., BALARAMAPURAM VILLAGE, NEYYATTINKARA TALUK, ``` ``` OP(C) NO. 1217 OF 2022 2 ``` ``` THIRUVANANTHAPURAM, PIN 695501 ``` ``` ARE IMPLEADED AS ADDITIONAL RESPONDENTS 2 TO 4 VIDE ORDER DATED 25.11.2022 IN I.A. NO.1/2022 ``` ``` BY ADVS. R.T.PRADEEP M.BINDUDAS(K/523/2010) K.C.HARISH(K/000788/2017) ``` ``` THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(C) NO. 1217 OF 2022 3 ``` **Dated this the 14[th] day of February, 2023** ## **JUDGMENT** Confronted with Ext.P10 order in R.P. No.116/2020 and I.A. No.1/2020 in O.S. No.339/2013 passed by the Court of the Principal Munsiff, Neyyattinkara (Trial Court) and Ext.P12 judgment passed in CMA No.5/2021 by the Court of the Subordinate Judge, Neyyattinkara (lower Appellate Court), the counter-claim defendant in the suit has filed the original petition. The respondent is the counter-claim plaintiff before the court below. 2. The facts leading to Ext.P10 order and Ext.P12 judgment, in a nutshell, are: (i) The petitioner had filed O.S. No.339/2013 against the original respondent for declaration and consequential injunction. The original respondent filed a counter-claim along with the written statement for recovery of possession and arrears of rent. ## **`OP(C) NO. 1217 OF 2022 4`** (ii) The suit was dismissed for default and the petitioner was set ex-parte in the counter-claim. (iii) The petitioner filed R.P. No.124/2020 and I.A. No.1/2020 to restore the suit and to condone the delay of 666 days in filing the R.P. No.124/2020. He also filed R.P.No.116/2020 and I.A. No.1/2020 to set aside the exparte decree in the counter-claim and I.A. No.1/2020 to condone the delay of 614 days in filing R.P. No.116/2020. (iv) The Trial Court, by the impugned Ext.P10 common order, dismissed the applications. (v) Aggrieved by Ext.P10 common order, the petitioner preferred C.M.A Nos.4 and 5 of 2021 before the lower Appellate Court. (vi) The lower Appellate Court, by the impugned Ext.P12 common judgment, dismissed both the appeals. (vii) Ext.P10 common order and Ext.P12 common judgment are ex-facie illegal and unsustainable in law. Hence,the original petition. 3. Heard; Sri. K.K. Dheerendrakrishnan, the learned ## **`OP(C) NO. 1217 OF 2022 5`** counsel appearing for the petitioner and Sri.R.T. Pradeep, the learned counsel appearing for the respondents. 4. The petitioner has confined the original petition to the order passed in R.P. No.116/2020 and I.A. No.1/2020 in the suit and the judgment in C.M.A.No.5/2021. 5.The question is, whether there is any illegality in Ext.P10 order in R.P. No.116/2020 and I.A.No.1/2020 in O.S.No.339/2013 and Ext.P12 judgment in C.M.A.No.5/2021. 6. The petitioner had filed the suit for declaration and consequential injunction in respect of plaint ‘A’ schedule property. The original respondent resisted the suit by filing a written statement with a counter-claim seeking recovery of possession and arrears of rent. 7. On an appreciation of the pleadings and materials on record, it is seen, by judgment dated 23.07.2015 in O.P.(C)No.1527/2015, this Court had directed the suit to be disposed of within six months from the date of receipt of a certified copy of the judgment. ## **`OP(C) NO. 1217 OF 2022 6`** 8. Undisputedly, the suit was included in the special list for trial as early as on 01.02.2016. 9. It is also evident from Ext.P10 common order that, on 01.02.2016, the petitioner did not turn up for trial and the suit was dismissed for default and the counter-claim was decreed ex-parte. 10 Later, at the instance of the petitioner, on the alleged ground that the petitioner was laid up due to fever and on payment of costs, the suit was restored to file and the ex-parte decree was set aside. 11. Thereafter, again the suit was listed for trial, but the petitioner did not turn up. The court below reiterated its earlier stand, by Ext.P3 judgment dated 04.12.2018, this time by dismissing the suit and decreeing the counter-claim. 12.On 10.08.2020, the petitioner filed R.P.No.116/2020 (Ext.P4) and I.A. No.1/2020 (Ext.P5), to set aside the ex-parte decree and to condone the delay of 614 days in filing Ext.P4. ## **`OP(C) NO. 1217 OF 2022 7`** 13. The petitioner’s case in Ext.P5 application, to condone the delay of 614 days, was that he was under severe stress and depression, since 2010 onwards. From 2018 onwards, he was suffering from Dysthymia and depression. Therefore, he was totally tied down in his house and was travelling, and he was in a phobia mood. Further, his Doctor had advised him not to have contact with people or talk. Thus, he could not appear before the court below. 14. The applications were resisted by the respondent by filing counter affidavits and, inter alia, contending that the petitioner did not turn up before the Trial Court on the day the suit was listed for trial. However, in a connected criminal case, i.e., C.C.No.495/2009 pending before the Judicial First Class Magistrate Court-III, Neyyattinkara, the petitioner got himself enlarged on bail. Later, he violated the bail conditions and was arrested. He had appeared before the learned Magistrate on 04.02.2019, 25.02.2019, 16.05.2019, 14.08.2019, ``` OP(C) NO. 1217 OF 2022 8 ``` 21.08.2019 and 26.09.2019. Likewise, the petitioner was diligently contesting E.P.No.231/2019 before the Court of the Additional Munsiff-II, Neyyattinkara. Thus, the allegations in Exts.P4 and P5 applications were false and without any bonafides. The petitioner’s sole intention was to protract the determination of the suit and the counter-claim. 15. The Trial Court, after appreciating Exts.P4 and P5 applications and the counter affidavits, by the impugned Ext.P10 common order, after considering that the petitioner had not proved Exts.A1 to A3 medical certificates and the respondent had produced and proved Exts.B1 to B5 documents, concluded that the petitioner has not made out sufficient cause to condone the inordinate delay of 614 days in filing Ext.P4 application. Accordingly, the applications were dismissed. 16. In the appeal, the lower Appellate Court, by the impugned Ext.P12 common judgment, confirmed the findings of the Trial Court, particularly, the fact that ## **`OP(C) NO. 1217 OF 2022 9`** there was nothing to substantiate the alleged illness of the petitioner. 17. A three Judge Bench of the Hon'ble Supreme Court in **University of Delhi v. Union of India and others** [2019 KHC 7261] has held thus: “20.xxxxxxxxxxxxxxxxxx Even in such case the condonation of long delay should not be automatic since the accrued right or the adverse consequence to the opposite party is also to be kept in perspective. **In that background while considering condonation of delay, the routine explanation would not be enough but it should be in the nature of indicating “sufficient cause” to justify the delay which will depend on the backdrop of each case and will have to be weighed carefully by the Courts based on the fact situation.** xxxxxxxxxx”. [emphasis supplied] ## 18. In **Pundlik Jalam Patil v. Jalgaon Medium Project, [(2008) 17 SCC 448],** the Hon'ble Supreme ## Court has observed as follows: “17. …..The evidence on record suggests neglect of its own right for long time in preferring appeals. **The court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The court helps those who are vigilant and 'do not slumber over their rights.”** ## **`OP(C) NO. 1217 OF 2022 10`** “29. It needs no restatement at our hands that the object for fixing time limit for litigation is based on public policy fixing a life span 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** .” [emphasis supplied] ## 19. Again in **Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai** [(2012) 5 SCC 157] the Hon'ble Supreme Court has held thus: **“24.** What colour the expression “sufficient cause” would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. **If on the other hand, the explanation given by the application is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay”** . [emphasis supplied] 20. The above position has been reiterated by the Hon'ble Supreme Court in **Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar** ## **`OP(C) NO. 1217 OF 2022 11`** **Academy and Others** [(2013) 12 SCC 649] by holding that: 21.8 (viii) **There is a distinction between inordinate delay and a delay of short duration of 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.** 21.9 (ix) 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(x) **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.”** [emphasis supplied] 21. Therefore, the law is succinctly laid down in the afore-cited precedents that, while considering an application for condonation of delay, a routine explanation is insufficient to indicate sufficient cause to justify the delay, which will depend on the back drop of each issue and will have to be weighed carefully by the Courts based on the fact situation. In the case of ``` OP(C) NO. 1217 OF 2022 12 ``` inordinate delay a strict approach is warranted because “delay defeats equity”. 22. Furthermore, it is trite; the exercise of the power of superintendence of this Court under Article 227 of the Constitution of India is to keep the courts of the District Judicature within their bounds of authority and to see that they do the duty as expected of them. The High Court is not vested with any unlimited prerogative to correct all decisions made within the limits of the jurisdiction of the subordinate courts. The exercise of this power and interfering with the orders of the courts is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also nigh settled that while acting under this Article, the High Court is not acting as an appellate court to substitute its judgment in place of the subordinate courts. 23. On the conspectus of the above facts, the law on ``` OP(C) NO. 1217 OF 2022 13 ``` the point and evaluating Ext.P10 order and Ext.P12 judgment, particularly, the fact that the petitioner has not proved Ext.A3 medical certificate that he was allegedly indisposed for a period of 614 days, but, he had appeared before the civil court in the execution petition and before the jurisdictional Magistrate at the same point of time, I do not find any error in the concurrent conclusion arrived at by the courts below in the impugned Ext.P10 order and Ext.P12 judgment. Thus, I conclude that the reasons stated in Exts.P4 and P5 applications are concocted for the purpose of the applications. 24. Moreover, the rights of the respondents have crystallized after the passing of Ext.P3 decree, which has been executed and the respondents have been put in possession of the building. On an overall consideration of the case on hand, I hold that the courts below have not overstepped their powers or authority in passing the impugned order and judgment, warranting interference by this Court under ## **`OP(C) NO. 1217 OF 2022 14`** Article 227 of the Constitution of India. The original petition fails and is consequentially dismissed. **Sd/-** **C.S.DIAS, JUDGE** rmm14/02/2023 ## **`OP(C) NO. 1217 OF 2022 15`** ## **`APPENDIX OF OP(C) 1217/2022`** ``` PETITIONER EXHIBITS ``` ``` Exhibit-P1 ``` ``` THE PHOTOCOPY OF THE PLAINT IN O.S. NO. 339/2013 OF THE MUNSIFF COURT, NEYYATTINKARA ``` - `Exhibit P2 THE PHOTOCOPY OF THE WRITTEN STATEMENT IN O.S. NO. 339/2013 OF THE MUNSIFF COURT, NEYYATTINKARA AND COUNTER CLAIM OF THE DEFENDANT` - `Exhibit P3 THE PHOTOCOPY OF THE JUDGMENT IN COUNTER CLAIM IN O.S. NO. 339/2013 OF THE PRINCIPAL MUNSIFF COURT, NEYYATTINKARA` - `Exhibit P4 THE PHOTOCOPY OF R.P. NO. 116/2020` - `Exhibit P5 PHOTOCOPY OF I.A. NO. 1/2020 IN O.S. NO. 339/2013 OF THE MUNSIFF COURT, NEYYATTINKARA` - `Exhibit P6 THE PHOTOCOPY OF THE MEDICAL CERTIFICATE DATED 30.3.2011 ISSUED BY DR. ABDUL BARY` - `Exhibit P7 PHOTOCOPY OF THE MEDICAL CERTIFICATE DATED 11.6.2017 ISSUED BY DR. ABDUL BARY` - `Exhibit P8 PHOTOCOPY OF MEDICAL CERTIFICATE DATED 10.7.2020 ISSUED BY DR. ABDUL BARY` - `Exhibit P9` - `THE PHOTOCOPY OF THE OBJECTION FILED BY THE RESPONDENT IN R.P. NO. 116/2020 IN O.S. NO. 339/2013 OF THE MUNSIFF COURT, NEYYATTINKARA` - `Exhibit P10 THE PHOTOCOPY OF THE COMMON ORDER DATED 18.2.2021 IN R.P. NO. 116/2020 AND I.A. NO. 1/2020 IN O.S. NO. 339/2013 OF THE PRINCIPAL MUNSIFF COURT, NEYYATTINKARA` - `Exhibit P11 PHOTOCOPY OF MEMORANDUM OF CMA NO. 5/2021` ``` OP(C) NO. 1217 OF 2022 16 ``` ``` FILED BY THE PETITIONER BEFORE THE SUB COURT, NEYYATTINKARA ``` ``` Exhibit P12THE PHOTOCOPY OF THE COMMON JUDGMENT DATED 9.4.2021 IN C.M.A. NO. 4/2021 AND C.M.A. NO. 5/2021 OF THE SUB COURT, NEYYATTINKARA ```