Rev'n Petitioners / Petitioners (Addl. Plaintiffs) Joseph Philip & Philip Luck v. Ouseph Chacko & others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 25TH JULY 2008 / 3RD SRAVANA 1930 CRP.No. 56 of 2005() -------------------- AGAINST THE ORDER DATED 04/08/2004 IN IA.1032/2003 IN OS.65/1978 of J.M.F.C.,ETTUMANUR .................... ## REVN. PETITIONER / PETITIONER/ADDL.PLAINTIFFS: --------------------------------------------- 1. JOSEPH PHILIP, S/O.LUCKA POTHEN, THAYYILAYA ONASSERIL,MANNANAM KARA, ATHIRAMPUZHA, REP. BY THE P.A.HOLDER PHILIP LUCKA THE 2ND PETITIONER HEREIN. 2. PHILIP LUCK, S/O.LUCKA POTHEN THAYYILAYA ONASSERIL, MANNANAM KARA, ATHIRAMPUZHA. BY ADV. SRI.S.VINOD BHAT SRI.R.D.SHENOY (SR.) ## RESPONDENTS / COUNTER PETITIONER/DEFENDANT: ------------------------------------------ 1. OUSEPH CHACKO, AMMENCHERYTHADAM PURAYIDAM, MANNANAM KARA. 2. PHILOMINA CHACKO, W/O.CHACKO DO. DO. DO. ## 3. ANNA CHACKO , DO. CHACKO DO,. DO. ## 4. CHACKO OUSEPH, S/O.OF DO. DO. DO. 5. OUSEPH DEVASSIA, S/O.OUSEPH OF DO. 6. ROSSAMMA, D/O.LUCKA POTHEN THAYYILAYA ONASSERIL HOUSE NOW R/A. 2041, KEEKE STREET, TORONTO, M6M CANADA. 7. SISTER DIDACUS @ KATHIRAMMA, D/O.LUCKA POTHEN, ST.JOSEPH'S CONVENT MISSION QUARTERS, THRISSUR. 8. PHILOMINA JOSEPH, D/O.LUCKA POTHEN THAYYILAYA ONASSERIL, MANNANAM KARA. ## 9. LISSAMMA THOMAS OF DO. DO. ## 10. KUNJAMMA JOSEPH, OF DO. DO. (DIED) 11. CHINNAMMA VARKEY, W/O.OUSEPH PANTHALUPARAMBIL, AMALAGIRI P.O. ATHIRAMPUZHA. ## 12. JOSSEY GEORGE OF DO. DO. ## 13. ANTONY GEORGE OF DO. DO. ## 14. AMBILY GEORGE, D/O.VARKEY OF DO. DO. DO. 15. ANCY GEORGE, D/O.VARKEY, KOOZHAMPALAYIL, NARIKKUZHY, VETTIMUKAL P.O. ETTUMANOOR. BY ADV. SRI.P.G.PARAMESWARA PANICKER (SR.) FOR R1 SRI.P.GOPAL FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/07/2008, ALONG WITH CRP NO. 105 OF 2005 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **HARUN-UL-RASHID,J.** **--------------------------------------------C.R.P.NOS.56 & 105 OF 2005 ---------------------------------------------Dated this the 25[th] day of July, 2008.** ## **O R D E R** The revision petitioners are the additional plaintiffs in O.S.No.65/1978 on the file of the Munsiff Court, Ettumanoor. The petition were directed against the order dated 4.8.2004 in I.A.Nos.1031/2003 and 1032/2003. 2. O.S.No.65/1978 was filed by the plaintiffs for declaration of their title and possession, for the consequential relief of prohibitory injunction with regard to item No.1 of the plaint schedule property and for mandatory injunction with regard to item No.2 of the plaint schedule property. According to the plaintiffs, the plaint schedule property was allotted to the first plaintiff by partition deed dated 27.5.1109 ME. O.S.No.374 of 1123 M.E and O.S.No.79 of 1966 were filed by the two brothers of the first plaintiff claiming title over the same property. But both these suits were dismissed holding the right of the first plaintiff. It is further alleged that father of the first defendant was residing in a hut situated near the property. He was one of the defendants in O.S.No.374 of 1123 ME. His wife and four CRP.NOS.56 &105/05 2 . children were impleaded in O.S.No.79 of 1966 wherein the present first defendant was the 4th defendant. The present plaintiffs filed O.S.No.113/1968 for evicting the defendants from the old hut. That suit was disposed of in favour of the plaintiffs. Defendants 1, 5 and 6 approached the Land Tribunals of Ettumanoor and Kottayam for purchase of jenm right. The same was also dismissed. Finally on 19.2.1977 the defendants were evicted and the plaintiffs took delivery of the hut in execution of the property in O.S.No.113/1968. It is the case of the plaintiffs that after delivery the defendants trespassed into the western portion of item No.1 and constructed another shed and occupied it. This property is shown as item No.1 in the suit. 3. The defendants resisted the suit claiming rival title. According to the first defendant, the property in Survey No.896/2 was lying as a separate block and it was not in the possession of the plaintiffs. According to him, he constructed the building and occupied it in 1108 ME. 4. The trial court decreed the suit originally in appeal. In the two appeals filed as A.S.Nos.3/83 and 42/83, the lower appellate CRP.NOS.56 &105/05 . 3 court set aside the judgment passed by the trial court and remanded the matter for the purpose of identification of the plaint schedule property. After the remand, the trial court received additional, oral and documentary evidence and again decreed the suit. The defendants filed A.S.No.80/87 challenging the decree in favour of the plaintiffs. The lower appellate court again considered the matter on merits and held that in the absence of the plan, identification of the property made by the Commissioner is not correct. Therefore, the matter was remitted for de novo consideration for the second time. The plaintiffs being aggrieved by the repeated order of remand, filed C.M.A.No.231/1991 before this Court. This Court finds that in the absence of the plan there was no proper identification of the plaint schedule property and therefore, this court did not interfered with the order of remand passed by the lower appellate court. The judgment of this Court is dated 19th March, 1997. 5. When the matter was pending before the trial court after the disposal of the C.M.Appeal , the plaintiffs filed an application for issuance of a Commission for the purpose of identification of the property. The said application was filed on 30.8.1997. The trial CRP.NOS.56 &105/05 . **==> picture [7 x 9] intentionally omitted <==** court adjourned the case and directed the plaintiffs to remit the commission bata and posted the case on 29.9.1997 for report. On that date neither the plaintiffs nor their counsel were present. The trial court dismissed the suit for default. The plaintiffs filed I.A.No.1872/1997 to restore the suit to file. The said application was dismissed for default by the trial court by order dated 26.11.1997. 6. The present controversy was started from the date of dismissal of I.A.No.1872/1997. The plaintiffs' case is that when the matter was noticed by their lawyer, they got advice that the proper course open to the parties is to file an appeal against the order of dismissal for default. Therefore, the plaintiffs filed A.S.No.210/1998 before the appellate court challenging the dismissal of the suit for default. The appeal was filed belatedly and therefore, an affidavit was also filed for condonation of delay of 343 days in filing the appeal. The appeal was pending before the appellate court till 31.7.2003. On that day, the appellate court passed orders on the application for condonation of delay and in the appeal. The appellate court held that the appeal itself is not maintainable as the suit dismissed for default decree can be drawn CRP.NOS.56 &105/05 . 5 as defined under Section 2(2) of the C.P.C. Therefore, the appellate court observed that even if the application for condonation of delay is allowed, no useful purpose will be served as appeal itself is not maintainable. In fact, the appellate court did not go into the question as to whether the plaintiffs prosecuted the matter bona fidely and whether sufficient cause shown for condonation of delay in filing the appeal in view of the stand taken by the court that the appeal itself is not maintainable. 7. It is submitted that the plaintiffs have filed I.A.No.1872/1997 within the time limit prescribed under the law. Since it is stated that they have earnestly prosecuting the appeal as per the legal advice, they did not prosecute I.A.No.1872/1997. Therefore, it happened to be dismissed by the trial court on 26.11.1997. When the plaintiffs got information that their application for condonation of delay and A.S.No.210/1998 are not maintainable, on 7.8.2003 ie, within the period of one week from the date of disposal of the said appeal, the petitioners again approached the trial court seeking restoration of I.A.No.1872/1997 which was dismissed for default. The order passed in the said application is the subject matter of these revisions. CRP.NOS.56 &105/05 . 6 8. I.A.No.1031/2003 was filed seeking restoration of I.A.No.1872/1997 and I.A.No.1032/03 was filed for condoning the delay in filing I.A.No.1031/2003. 9. The trial court after hearing both sides concluded that it cannot be said that the petitioners were diligently prosecuting the case. So, they were not entitled for exclusion of time taken for prosecuting the appeal. The reason stated for not filing the present application was not appealing to the court below and the court below found that these are not genuine reasons for condoning the delay in filing the restoration petition. The trial court observed that there is willful negligence on the part of the petitioners even after the dismissal of the appeal. Therefore the trial court dismissed the delay petition and consequently I.A.No.1031/2003. 10. As stated earlier, the appellate court remanded the case for identification of the property. Subsequently as noted above, in the appeal filed against the decree passed in favour of the plaintiffs, again the appellate court remanded the matter stating that at the CRP.NOS.56 &105/05 . 7 time of measurement, the plan of the property was not available with the Taluk Surveyor. Therefore, identification was not proper. So, the matter was again remanded for identification. Pursuant to the second remand, the plaintiffs applied again for commission for a proper identification as ordered by the court below. The suit was happened to be dismissed for want of proof of deposit of the commission bata as ordered by the court. It is submitted by the counsel for the revision petitioners that the the petitioners' bonafide believe that the remedy open to them is to file appeal against the order of dismissal, therefore, they have bona fidely filed appeal which was dismissed on 31.7.2003. The trial court held that the petitioners did not bonafidely prosecuted the appeal. I do not find any reason as stated by the trial court for taking such a view. From the materials on record, I find that the plaintiffs have prosecuted the appeal genuinely and on the strong belief that their case will be restored to file by the appellate court. The history of the case itself shows that the plaintiffs have made out a strong case against the defendants and that the plaintiffs were bona fidely and genuinely prosecuting the matter through out all these years. I have also come across the fact that even after the dismissal of the restoration application in 1997, and the appeal in CRP.NOS.56 &105/05 . 8 2003, till this date the plaintiffs are prosecuting the matter for the purpose of getting a decree in their favour. This is a suit which was decreed twice, I find no reason to show that the attempt of the plaintiffs is not for the relief claimed in the plaint but for harassing the respondents. I have no doubt in my mind that the plaintiffs had taken extra caution to contest the case. The learned counsel for the revision petitioners brought to my attention the decision of the Supreme Court reported in **Lachi Tewari and others v. Director of Land Records and others** (AIR 1981 SC 41) "The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of hearing of the appeal, the personal appearance of the party is not only only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job." CRP.NOS.56 &105/05 . 9 11. Supreme court also followed the decision in **Collector Land Acquisition v. Katiji** (1987 (2) SCC 107) in which it was held that Section 5 was enacted in order to enable the courts to do substantial justice to parties by disposing of matters on merits. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice- that being the life-purpose for the existence of the institution of courts. In the said decision, the court also held that the doctrine must be applied in a rational, common sense, pragmatic manner and that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. In the light of the CRP.NOS.56 &105/05 . 10 Supreme Court decision which followed and re-stated the principles which applied in the matter of condonation of delay, the approach shall be a justice oriented approach and that this court cannot encourage injustice oriented approach for rejecting the application for condonation of delay. 12. From the nature of the contentions of the respective parties and the manner in which the parties are fighting the case for the last several years right from 1978, I am of the view that the plaintiffs were prosecuting the case earnestly and bona fidely. The suit was filed in the year 1978 and still the parties are awaiting for a decree even after three decades. The suit was dismissed for default in the year 1997 and the defendants were resisting the applications for the last 10 years. They also fought this case for the last three decades. Therefore, I find that the plaintiffs are bound to compensate the monetary loss caused to the contesting respondent at least for the period after the dismissal of the suit. 13. In the result I.A.No.1032/03 is allowed and the delay in filing I.A.No.1031/2003 is condoned on condition that the revision petitioners pay Rs.25,000/= within a period of one month from CRP.NOS.56 &105/05 . 11 today, failing which these civil revision petitions shall stand automatically dismissed. The trial court shall hear and dispose of I.A.No.1872/97 on merits within a period of six months from the date of receipt of a copy of this judgment. The trial court shall give opportunity to both sides to adduce evidence in support of their respective contentions. These C.R.Ps are disposed of. No order as to costs. The parties shall appear before the court on 27.8.2008. It is made clear that the award of Rs.25,000/= as a condition for allowing I.A is only for the purpose of compensating the financial loss caused to the contenting respondents in defending the matter for the last one decade. It has nothing to do on merit or the contentions of the respective parties. The impugned orders are set aside. ## **HARUN-UL-RASHID, JUDGE.** ## **cl** CRP.NOS.56 &105/05 . 12