Regular Second Appeal No. 684 of 2015 (RSA No. 684 of 2015)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` TUESDAY, THE 5[TH] DAY OF MARCH 2024 / 15TH PHALGUNA, 1945 ``` ``` RSA NO. 684 OF 2015 ``` ``` AGAINST THE DECREE AND JUDGMENT IN A.S.NO.5/1994 OF III ADDITIONAL SUB COURT, KOZHIKODE ``` ``` AGAINST THE DECREE AND JUDGMENT IN O.S.NO.498/1989 OF ADDITIONAL MUNSIFF COURT-II,KOZHIKODE ``` ``` APPELLANTS/LEGAL HEIRS OF 3RD RESPONDENT IN A.S.NO.5/94/LEGAL HEIRS OF 3RD DEFENDANT IN O.S.NO.498/1989: ``` ## **`1 SUSHEELA,`** ``` AGED 58 YEARS, ``` ``` W/O. LATE PURUSHOTHAMAN, THOTTUNGAL HOUSE, GURIKKAL KAV ROAD, BEYPORE AMSOM AND DESOM, KOZHIKODE TALUK ``` ``` 2SHYAMA PRASAD, ``` ``` AGED 37 YEARS, ``` ``` S/O. LATE PURUSHOTHAMAN, THOTTUNGAL HOUSE, GURIKKAL KAV ROAD, BEYPORE AMSOM AND DESOM, KOZHIKODE TALUK ``` ``` 3PRASANTH, ``` ``` AGED 31 YEARS, ``` ``` S/O. LATE PURUSHOTHAMAN, THOTTUNGAL HOUSE, GURIKKAL KAV ROAD, BEYPORE AMSOM AND DESOM, KOZHIKODE TALUK ``` ``` 4PRASHOB, ``` ``` AGED 31 YEARS, ``` ``` S/O. LATE PURUSHOTHAMAN, THOTTUNGAL HOUSE, GURIKKAL KAV ROAD, BEYPORE AMSOM AND DESOM, KOZHIKODE TALUK ``` ``` 5PRAJEESH, ``` ``` AGED 27 YEARS, ``` ``` S/O. LATE PURUSHOTHAMAN, THOTTUNGAL HOUSE, GURIKKAL KAV ROAD, BEYPORE AMSOM AND DESOM, KOZHIKODE TALUK ``` - **`6 PRABHEESH,`** ``` AGED 22 YEARS, ``` ``` S/O. LATE PURUSHOTHAMAN, THOTTUNGAL HOUSE, GURIKKAL KAV ROAD, BEYPORE AMSOM AND DESOM, KOZHIKODE TALUK ``` ``` BY ADV SRI.K.MUHAMMED SALAHUDHEEN ``` **C.M.APPL.No.709 of 2015 in R.S.A.No.684 of 2015** **& R.S.A.No.684 of 2015** **`2`** ``` RESPONDENTS/LEGAL HEIRS OF PLAINTIFF AND RESPONDENTS 1, 4, 5 AND 6 IN A.S.NO.5 OF 94/DEFENDANTS 1, 4, 5 & 6 IN O.S.NO.498/1989: ``` - **`1 THOTTUNGAL DEVADASAN S/O. KUTTAYI, THOTTUNGAL HOUSE, PO BEYPORE, KOZHIKODE`** - **`2 P. RAMANI D/O. KAMALAKSHI W/O MOHANDAS, 2/106 J. SREYA, UDAUYAKURUMBA ROAD, KARAPARAMB, KACHERI AMSOM AND DESOM, KOZHIKODE TALUK`** - **`3 P. VIJAYALAXMI @ SUSHEELA D/O. KAMALAKSHI W/O.C.P.BABOO, 12/302,JEETH, CHAMUNDI PARAMB,ERANHIPPALAM, KACHERI AMSOM AND DESOM, KOZHIKODE TALUK`** - **`4 P. DEVADAS S/O. KAMALAKSHI, EF 4/5931, KERALA STATE HOUSING BOARD COLONY, BILATHIKULAM, ERANHIPPALAM, KACHERI AMSOM AND DESOM, KOZHIKODE TALUK`** - **`5 V. GEETHA D/O. KAMALAKSHI, W/O LATE E. KAMALA RAJ, 105/1 SANGEETH, VARADAMMAL GARDENS, KALLPAKK, CHENNAI-10`** - **`6 LAXMIKUTTY D/O. KRISHNAN, PADINJARAYIL HOUSE, PO CHALIYAM, KADALUNDI AMSOM AND PAZHANICHENNUR DESOM`** - **`7 THOTTUNGAL RAGHUNATHAN S/O. KRISHNAN, THOTTTUNGAL HOUSE, BEYPORE(PO), KOZHIKODE`** - **`8 SHYAMALA`** - **`D/O. KRISHNAN, PO.BEYPORE, BEYPORE AMSOM AND DESOM, KOZHIKODE TALUK`** ## **`R2 TO R5 BY ADVS.`** ## **`SMT.K.DAYAANA`** ## **`SRI.P.K.SREEDHARAN`** **C.M.APPL.No.709 of 2015 in R.S.A.No.684 of 2015** **& R.S.A.No.684 of 2015** **`3`** ``` SRI.P.K.VIJAYAN CALICUT SMT.BINDU GEORGE R8 BY ADVS. SRI.A.JAYASANKAR SRI.C.V.MANUVILSAN SRI.MANU GOVIND SRI.ASHWIN SETHUMADHAVAN R9 TO R12 BY ADV. SRI.P.K.RAMKUMAR ``` ``` THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28.02.2024, THE COURT ON 5.3.2024 DELIVERED THE FOLLOWING: ``` ## **C.M.APPL.No.709 of 2015 in R.S.A.No.684 of 2015** **& R.S.A.No.684 of 2015** **`4`** ## **JUDGMENT IN R.S.A.No.684 of 2015** and ## **ORDER IN C.M.APPL.No.709 of 2015** Dated this the 5[th] day of March, 2024 This Regular Second Appeal has been filed under Section 100 r/w Order XLI Rule 1 of the Code of Civil Procedure, challenging decree and judgment in A.S.No.5/1994 on the files of Additional Sub Court – III, Kozhikode, arose out of the decree and judgment in O.S.No.498/1989 on the files of the Additional Munsiff Court – II, Kozhikode. 2. C.M.Application No.709 of 2015 has been filed to condone delay of 7280 days in filing this appeal. 3. Heard the learned counsel for the appellants/petitioners and the learned counsel appearing for the respondents 2 to 5 and the learned counsel appearing for respondents 1, 6 and 7. 4. In paragraph No.6 of the affidavit in support of C.M.Application No.709 of 2015, it was stated that the **C.M.APPL.No.709 of 2015 in R.S.A.No.684 of 2015 & R.S.A.No.684 of 2015** **`5`** appellants came to know about the decree only on 16.1.2010. In the affidavit, Smt.Susheela, aged 58 years, W/o.Late Purushothaman, affirmed in paragraph Nos.4, 6 and 7 as under: _4. The above appeal in the normal course had to be filed before 10[th] March 1997. My husband who was the 3[rd] respondent in the above Appeal Suit No.5/94 and he was the 3[rd] defendant in the suit O.S.No.498/89 and he was conducting the case. He died on 14.2.2003 during the pendency of the suit. Eventhough this fact was known to the supplemental plaintiffs (who are respondents R1 to R6 herein) they did not choose to implead the legal heirs of the 3[rd] defendant. The net result of the said omission was that, a final decree was passed by the trial Court with a dead person on the party array making the decree and Judgment a nullity._ _6. We came to know about the proceedings in A.S. No.5/1994 only when the delivery of the property was effected on 16.1.2010. Immediately we filed petition before the Court below praying not to record the delivery and other proceedings was also there going in the Court below. We could apprehend that, considerable delay was there for_ **C.M.APPL.No.709 of 2015 in R.S.A.No.684 of 2015** **& R.S.A.No.684 of 2015** **`6`** _preferring appeal against the Judgment and Decree passed in A.S.No.5/1994. I am a chronic Asthmatic patient. I am also suffering from acute Rheumatism and was under the treatment of a local Ayurvedic physician at Kozhikode all along continuously and I could not attend to any of my routine works or undertake journeys to Ernakulam to meet a lawyer there and entrust him the brief for filing an appeal. I couldn't also raise sufficient funds to file the appeal during this time. Now, I have partially recovered from my illness and entrusted the matter to prefer an appeal against the decree and Judgment of the Appellate Court. Meanwhile, I learn that; steps are also being taken by the 1[st] respondent to get separate allotment of share in the plaint schedule property. It is a fact that considerable delay has occurred in filing this R.S.A._ _7. Now we have got legal opinion that we have to challenge the Appeal Suit before this Hon'ble Court by filing this R.S.A._ 5. The 2[nd] respondent filed a detailed counter, narrating the history of the case and the execution of the decree and parting the properties by the parties to the suit. It is submitted by the learned counsel for the respondents 2 **C.M.APPL.No.709 of 2015 in R.S.A.No.684 of 2015 & R.S.A.No.684 of 2015** **`7`** to 5 that the appellants herein are the legal heirs of the 3[rd] respondent, who was ex-parte in the final decree proceedings. It is submitted further that, appellate judgment was delivered on 10.12.1996 and the 3[rd] respondent died on 14.2.2003 and he did not prefer an appeal against the final decree. Therefore, no justification for the legal heirs of the 3[rd] respondent, who are the appellants herein to file this appeal after about 22 years and no sufficient reasons stated to condone the delay. Paragraph Nos.6 and 7 of the counter affidavit appears to be relevant and the same are extracted hereunder: _6. Since the appeal, AS No:5/1994 was decreed by Hon'ble Sub Court III A, Kozhikode on 10-121996 the above 2[nd] Appeal before this Hon'ble High Court ought to have been filed before 10-031997. Therefore, as admitted in the affidavit by the petitioners there is a delay of 7280 days (about 20 years) in filing the above appeal. The petitioners are not legally and factually entitled to get condonation of the delay as per the above application. In fact the petitioners now filed the above appeal and the application as the legal_ **C.M.APPL.No.709 of 2015 in R.S.A.No.684 of 2015 & R.S.A.No.684 of 2015** **`8`** _heirs of the 3[rd] Respondent in AS No:5/1994. The 3[rd] Respondent died on 14-2-2003 after 6 years and 2 months of the said decree. Even during his life time the right of appeal was hopelessly time barred. But he infact accepted the decree, and also went by the decree and therefore not opted to file 2[nd] Appeal against the said decree in AS No:5/1994. Therefore the alleged right to appeal to the 3[rd] respondent which was already time barred will not be get revived and condoned to the appellants after his death as the legal heirs of him to file the above appeal._ _7. After the decree in AS No:5/1994, the appellant/plaintiff Kamalakshi amma filed final decree application, FDA No:3521/1997 before the Hon'ble Munsiff court IIA, Kozhikode. In the said final decree proceedings also afore said Purushothaman was the 2[nd] respondent. But after receiving summons he did not appear in final decree proceedings and therefore he was set exparte by the Hon’ble Munsiff Court on 13-111997. Later he filed IA No:1369/2001 to set aside the said exparte order. The Hon'ble Munsiff Court after enquiry was pleased to allow the said application on condition of payment of cost in the said petition. But he did not pay the cost and therefore the petition was dismissed and he_ **C.M.APPL.No.709 of 2015 in R.S.A.No.684 of 2015** **& R.S.A.No.684 of 2015** **`9`** _continued exparte in final decree proceedings. In the above circumstances since said Purushothaman the 3[rd] Respondent in AS No: 5/1994, accepted the decree and opted not to file an appeal and went by the decree and died long after on 14-2-2003, the above petitioner as the legal heirs of the 3[rd] defendant have no right, at present to get condone the delay and there is no reason and sufficient cause for it. The alleged cause and reason stated in the affidavit are untrue insufficient and baseless to allow the aforesaid application._ 6. On perusal of the reasons stated to condone the delay of 7280 days, it is interesting to note that original 3[rd] respondent, the predecessor of the appellants remained ex parte before the trial court. During the first appellate stage also, he did not raise any challenge against the verdict of the trial court. It is most surprising to note that the 3[rd] respondent did not raise any challenge against the concurrent verdicts, though he was alive for a period of six years after pronouncement of the judgment by the first appellate court. Thus, the reasons stated by the appellants **C.M.APPL.No.709 of 2015 in R.S.A.No.684 of 2015 & R.S.A.No.684 of 2015** **`10`** herein to challenge the final decree, that too, after delivery of the properties to the parties in execution of the decree impugned, are no sufficient reasons to condone the long delay. 7. 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 suficient cause for not preferring the appeal or making the application within such period.”_ 8. 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 deliberate inaction or negligence, such a concession also is **C.M.APPL.No.709 of 2015 in R.S.A.No.684 of 2015 & R.S.A.No.684 of 2015** **`11`** 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 decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the_ **C.M.APPL.No.709 of 2015 in R.S.A.No.684 of 2015** **& R.S.A.No.684 of 2015** **`12`** _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 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_ **C.M.APPL.No.709 of 2015 in R.S.A.No.684 of 2015 & R.S.A.No.684 of 2015** **`13`** _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 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_ **C.M.APPL.No.709 of 2015 in R.S.A.No.684 of 2015** **& R.S.A.No.684 of 2015** **`14`** _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 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_ **C.M.APPL.No.709 of 2015 in R.S.A.No.684 of 2015 & R.S.A.No.684 of 2015** **`15`** _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"._ _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._ **C.M.APPL.No.709 of 2015 in R.S.A.No.684 of 2015** **& R.S.A.No.684 of 2015** **`16`** _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.”_ 9. For the reasons discussed above, no valid reasons could be found to condone a long delay of 7280 days. Therefore, this petition must fail. Accordingly, C.M.Appl.No.709 of 2015 stands dismissed. 10. Consequently, R.S.A.No.684/2015 also stands dismissed as time barred. 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** Bb