RSA No. 1197 of 2017

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 7[TH] DAY OF FEBRUARY 2024/18TH MAGHA, 1945** **RSA NO. 1197 OF 2017** **AGAINST THE JUDGMENT AND DECREE IN A.S.NO.112/2002 OF ADDITIONAL DISTRICT COURT,** **ALAPPUZHA AROSE OUT OF THE JUDGMENT AND DECREE IN** **O.S.NO.169/1993 OF PRINCIPAL SUB COURT, ALAPPUZHA** **APPELLANTS (ADDITIONAL RESPONDENTS 11 TO 14/LEGAL HEIRS OF THE DECEASED 7TH** **DEFENDANT IN THE COURT BELOW AND NO PARTY IN THE TRIAL COURT):** **1 ABDUL VAHAB AGED 80 YEARS S/O. MUHAMMED KUNJU, AGED 80, MALIYEKAL, SAJIDA MANZIL, VENCHARAPURAYIDOM, ALISSERY WARD, ALAPPUZHA. 2 SHAJILA ALIAS SAJITHA BEEVI A., AGED 47 YEARS D/O. JAMEELA, MALIYEKAL, SAJIDA MANZIL, VENCHARAPURAYIDOM, ALISSERY WARD, ALAPPUZHA. 3 RIYAS @ MUHAMMED RIYASUDHEEN A., AGED 45 YEARS S/O. JAMEELA, MALIYEKAL, SAJIDA MANZIL, VENCHARAPURAYIDOM, ALISSERY WARD, ALAPPUZHA. 4 SHEFEEK ALIAS MUHAMMED SHAFEEK A., AGED 41 YEARS, S/O.JAMEELA, MALIYEKAL, SAJIDA MANZIL, VENCHARAPURAYIDOM, ALISSERY WARD, ALAPPUZHA. BY ADVS. DR.V.N.SANKARJEE SRI.V.N.MADHUSUDANAN SRI.S.SIDHARDHAN SMT.M.SUSEELA SMT.R.UDAYA JYOTHI SRI.M.M.VINOD** **RESPONDENTS (APPELLANTS 3 TO 5, LRS. OF THE 1ST AND 2ND APPELLANTS, RESPONDENTS 5,6,8,9 & 10, LRS. OF RESPONDENTS 2 TO 4 IN THE COURT BELOW/PLAINTIFFS 3 TO 5 AND LRS.OF THE 1T AND 2ND PLAINTIFFS, LR OF THE 1ST PLAINTIFF, DEFENDANTS 6,7,9 AND 10 AND 11, LRS. OF THE 1ST AND 2ND DEFENDANTS, LR OF THE 4TH DEFENDANT AND LRS. OF THE 5TH DEFENDANT IN THE TRIAL COURT):** **1 T.K. SALIM AGED 75 YEARS S/O, T. M. KOCHUPAREETH, AGED 75, G-292, PANAMPILLY NAGAR, KOCHI-36 (FROM SALIM MANZIL, THEVARVATTAM MURI, THAYKATTUSSERI VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT-688526) (3RD APPELLANT AND LR OF THE 1ST AND 2ND APPELLANTS IN A.S.NO.112/2002-3RD PLAINTIFF AND LRS OF THE 1ST AND 2ND PLAINTIFFS** **C.M.Appl.No.964 OF 2017 IN RSA NO. 1197 OF 2017 & IN RSA NO. 1197 OF 2017** **2** **IN O.S.NO.169/1993)** **2 T. K. MUHAMMED SALI AGED 73 YEARS S/O. T. M. KOCHUPAREETH, AGED 73, SALIM MANZIL, MANAPPURAM P.O., CHERTHALA, ALAPPUZHA DISTRICT-695571 (FROM SALIM MANZIL, THAYKATTUSSERI VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT-688526)(4TH APPELLANT AND LR OF THE 1ST AND 2ND APPELLANTS IN A.S.NO.112/2002-4TH PLAINTIFF AND LRS OF THE 1ST AND 2ND PLAINTIFF IN O.S.NO.169/1993) 3 ABIDA BEEVI, (DIED) LRS IMPLEADED AGED 67 YEARS D/O. T. M. KOCHUPAREETH, AGED 67, SALIM MANZIL, THEVARVATTAM MURI, THAYKATTUSSERI VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT-688526 (5TH APPELLANT AND LR OF THE 1ST AND 2ND APPELLANTS IN A.S.NO.112/2002-5TH PLAINTIFF AND LRS OF THE 1ST AND 2ND PLAINTIFF IN O.S.NO.169/1993) 4 SUBAIDA AGED 68 YEARS W/O. T. K. SEETHI, AGED 68, SALIM MANZIL, THEVARVATTAM MURI, THAYKATTUSSERI VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT-688526.(LR OF THE 1ST AND 2ND APPELLANTS IN A.S.NO.112/2002-WIDOW OF THE 1ST PLAINTIFF AND LR OF THE 1ST AND 2ND PLAINTIFFS IN O.S.NO.169/1993) 5 HANZA AGED 47 YEARS D/O. T. K. SEETHI, AGED 47, SALIM MANZIL, THEVARVATTAM MURI, THAYKATTUSSERI VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT-688526 (LR OF THE 1ST AND 2ND APPELLANTS – RESPONDENTS 1 TO 5 ARE LRS. OF THE 1ST AND 2ND APPELLANTS IN A.S.NO.112/2002 (RESPONDENTS 1 TO 5 ARE LRS. OF THE 1ST AND 2ND APPELLANTS IN A.S.NO.112/2002)DAUGHTER OF THE 1ST PLAINTIFF AND LR OF THE 1ST AND 2ND PLAINTIFF IN O.S.NO.169/1993) 6 AKBER AGED 51 YEARS S/O. RUKIYA BEEVI, AGED 51, VENCHARAPURAYIDOM, ALISSERY WARD, ALAPPUZHA-688001.(5TH RESPONDENT IN A.S.NO.112/2002-6TH DEFENDANT IN O.S.NO.169/1993) 7 NABEESA YOUSUFF KUNJU AGED 55 YEARS D/O. RUKIYA BEEVI, AGED 55, VENCHARAPURAYIDOM, ALISSERY WARD, ALAPPUZHA-688001.(6TH RESPONDENT IN A.S.NO.112/2002 –** **3** ## **C.M.Appl.No.964 OF 2017 IN RSA NO. 1197 OF 2017 & IN RSA NO. 1197 OF 2017** - **7TH DEFENDANT IN O.S.NO.169/1993)** - **8 THAHA AGED 50 YEARS S/O. YOUSUFF, AGED 50, VENCHARAPURAYIDOM, ALISSERY WARD, ALAPPUZHA-688001.(8TH RESPONDENT IN A.S.NO.112/2002 -9TH DEFENDANT IN O.S.NO.169/1993)** - **9 SALI AGED 59 YEARS S/O. MARIYAM BEEVI, AGED 59, VENCHARAPURAYIDOM, ALISSERY WARD, ALAPPUZHA-688001.(9TH RESPONDENT IN A.S.NO.112/2002 -10TH DEFENDANT IN O.S.NO.169/1993)** - **10 KOCHU VAVA AGED 55 YEARS S/O. MARIYAM BEEVI, AGED 55, VENCHARAPURAYIDOM, ALISSERY WARD, ALAPPUZHA-688001.(10TH RESPONDENT IN A.S.NO.112/2002 -11TH DEFENDANT IN O.S.NO.169/1993)** - **11 AISHA BEEVI, (DIED) LRS RECORDED AGED 68 YEARS W/O. KUNJUMON, VENCHARAPURAYIDOM, ALISSERY WARD, ALAPPUZHA. (LR OF THE 1ST RESPONDENT IN A.S.NO.112/2002 -LR OF THE 1ST AND 2ND DEFENDANTS IN O.S.NO.169/1993) (IT IS RECORDED THAT RESPONDENTS 12 TO 14 ARE THE LEGAL REPRESENTATIVES OF DECEASED RESPONDENT 11, AS PER ORDER DATED 20.10.2023 IN IA.1/2023.)** **12 SUDHEER KUNJUMON AGED 45 YEARS S/O. KUNJUMON, AGED 45, VENCHARAPURAYIDOM, ALISSERY WARD, ALAPPUZHA-688001.(LR OF THE 1ST RESPONDENT IN A.S.NO.112/2002 - LR OF THE 1ST AND 2ND DEFENDANTS IN O.S.NO.169/1993) 13 MUMTHAS KUNJUMON AGED 43 YEARS D/O. KUNJUMON, AGED 43, VENCHARAPURAYIDOM, ALISSERY WARD, ALAPPUZHA-688001.(LR OF THE 1ST RESPONDENT IN A.S.NO.112/2002 -LR OF THE 1ST AND 2ND DEFENDANTS IN O.S.NO.169/1993)** **14 FOUSI AGED 40 YEARS D/O. KUNJUMON, AGED 40, VENCHARAPURAYIDOM, ALISSERY WARD, ALAPPUZHA-688001. (LR OF THE 1ST RESPONDENT IN A.S.NO.112/2002 -LR OF THE 1ST AND 2ND DEFENDANTS IN O.S.NO.169/1993)** **4** ## **C.M.Appl.No.964 OF 2017 IN RSA NO. 1197 OF 2017 & IN RSA NO. 1197 OF 2017** **15 NISA AGED 50 YEARS D/O. RUKHIYA BEEVI, AGED 50, VENCHARAPURAYIDOM, ALISSERY WARD, ALAPPUZHA-688001.(LR OF THE 3RD RESPONDENT IN A.S.NO.112/2002 -LR OF THE 4TH DEFENDANT IN O.S.NO.169/1993) 16 MAIMUNATH AGED 58 YEARS W/O. RAJA, AGED 58, VENCHARAPURAYIDOM, ALISSERY WARD, ALAPPUZHA-688001.(LR OF THE 4TH RESPONDENT IN A.S.NO.112/2002 -LR OF THE 5TH DEFENDANT IN O.S.NO.169/1993) 17 SINU RAJA AGED 35 YEARS S/O. RAJA, AGED 35, VENCHARAPURAYIDOM, ALISSERY WARD, ALAPPUZHA-688001.(LR OF THE 4TH RESPONDENT IN A.S.NO.112/2002 -LR OF THE 5TH DEFENDANT IN O.S.NO.169/1993) 18 KOCHUMOL RAJA AGED 25 YEARS D/O. RAJA, AGED 25, VENCHARAPURAYIDOM, ALISSERY WARD, ALAPPUZHA-688001.(LR OF THE 4TH RESPONDENT IN A.S.NO.112/2002 -LR OF THE 5TH DEFENDANT IN O.S.NO.169/1993) ADDL.R19 DR ANABI SHAHI A. D/O ABIDA BEEVI, AGED ABOUT 43, AARANNYA, EROOR, THRIPPUNITHURA, ERNAKULAM DISTRICT,PIN-682 306. ADDL.R20 NISHAM A. KADIR S/O ABIDA BEEVI, AGED 40,ARANNYA, EROOR, THRIPPUNITHURA, ERNAKULAM DISTRICT, PIN-682 306. ADDL.R21 BENAZIR A. KADIR D/O ABIDA BEEVI, AGED 37, ARANNYA, EROOR, THRIPPUNITHURA, ERNAKULAM DISTRICT,PIN682 306. (THE LEGAL REPRESENTATIVES OF DECEASED R3 ARE IMPLEADED AS ADDL.R19 TO R21 AS PER ORDER DATED 20.10.2023 IN IA.2/2023).** **R1, R2, R4 & R5 BY ADV. SRI.R.AZAD BABU** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ORDERS ON 07.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **5** **C.M.Appl.No.964 OF 2017 IN RSA NO. 1197 OF 2017 & IN RSA NO. 1197 OF 2017** ## **JUDGMENT IN RSA No.1197/2017 and ORDER IN C.M.APPL.NO.964/2017** Dated this the 7[th] day of February, 2024 This regular second appeal has been filed under Section 100 of the Code of Civil Procedure, 1908, by additional respondents 11 to 14 in the appeal suit, who are the legal representatives of the original 8[th] defendant in the suit, challenging the decree and judgment dated 05.06.2007 in A.S.No.112/2002 on the files of the Additional District Court, Alappuzha, arose out of the decree and judgment dated 29.06.2002 in O.S.No.169/1993 on the files of the Sub Court, Alappuzha. The respondents herein are the plaintiffs and other parties to the litigation. 2. C.M.Appl.No.964/2017 is a petition filed by the appellants seeking condonation of delay of 3677 days in preferring the appeal on the submission that the appeal **6** **C.M.Appl.No.964 OF 2017 IN RSA NO. 1197 OF 2017 & IN RSA NO. 1197 OF 2017** ought to have been filed on or before 03.09.2007. It is submitted by the learned counsel for the appellants/ petitioners that the necessity of challenging the first appellate decree and judgment was brought to notice when the delivery of the property in execution of the decree, in terms of the first appellate court's decree was effected. Therefore, the learned counsel pressed for condonation of delay of 3677 days in filing the regular second appeal. 3. In this matter, the learned counsel for respondents 1, 2, 4 and 5 filed a detailed counter, zealously opposing condonation of delay of 3677 days, equivalent to 10 years and 27 days, mainly asserting that there is no _sufficient cause_ to condone the long delay in tune with the mandate of Section 5 of the Limitation Act. It is specifically pointed out by the learned counsel for respondents 1, 2, 4 and 5 that challenging the decree and judgment in A.S.No.112/2002 (the same are the decree and judgment assailed herein) **7** **C.M.Appl.No.964 OF 2017 IN RSA NO. 1197 OF 2017 & IN RSA NO. 1197 OF 2017** respondents 1, 3, 4, 5, 9 and 10/Defendant Nos.4, 5, 6 and LRs of the 3[rd] defendant filed second appeal before this Court as RSA No.86/2008 and the said appeal was filed along with a petition to condone delay of 79 days. But this Court was not inclined to condone the said delay for want of sufficient cause and accordingly, C.M.Appl.No.74/2008, the delay petition filed in RSA No.86/2008 was dismissed and consequently, the regular second appeal also was dismissed. 4. It is interesting to note that in RSA 86/2008 also, the appellants herein are parties and therefore, they could not file the present second appeal without raising the contention in RSA No.86/2008 and Annexure R1(a), produced by respondents 1, 3, 4 and 5, would go to show that in fact, the challenge against A.S.No.112/2002, where all the parties in AS No.112/2002 were arrayed, was negatived by this Court and therefore, the present second appeal is not otherwise maintainable, being barred by res judicata. **8** ## **C.M.Appl.No.964 OF 2017 IN RSA NO. 1197 OF 2017 & IN RSA NO. 1197 OF 2017** 5. Insofar as condonation of delay is concerned, though the learned counsel for the appellants reiterated the contentions urged before the first appellate court, with a view to get 3677 days delay condoned, on perusal of the affidavit in support of the petition, it could be gathered that 'no sufficient reasons' stated to condone the long delay in filing the appeal. 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 sufficient cause for not preferring the appeal or making the application within such period.”_ 6. It is true that “sufficient cause” is the decisive factor while condoning the delay. Though it has been settled **C.M.Appl.No.964 OF 2017 IN RSA NO. 1197 OF 2017 & IN RSA NO. 1197 OF 2017** **9** 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 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:-_ **C.M.Appl.No.964 OF 2017 IN RSA NO. 1197 OF 2017 & IN RSA NO. 1197 OF 2017** **10** _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 decreeholder 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 decreeholder 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."_ **11** ## **C.M.Appl.No.964 OF 2017 IN RSA NO. 1197 OF 2017 & IN RSA NO. 1197 OF 2017** - _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 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 diligence and preventing oppression. The object for fixing timelimit for litigation is based on_ **C.M.Appl.No.964 OF 2017 IN RSA NO. 1197 OF 2017 & IN RSA NO. 1197 OF 2017** **12** _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 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._ **13** **C.M.Appl.No.964 OF 2017 IN RSA NO. 1197 OF 2017 & IN RSA NO. 1197 OF 2017** - _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. 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.”_ 7. On perusal of the affidavit in support of this petition, no valid reasons could be found to condone a long **14** **C.M.Appl.No.964 OF 2017 IN RSA NO. 1197 OF 2017 & IN RSA NO. 1197 OF 2017** delay of 3677 days. That apart, the present appeal is barred by res judicata also. Therefore, this petition must fail. Accordingly, C.M.Appl.No.964/2017 stands dismissed. 8. Consequently, RSA No.1197/2017 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** nkr **15** **C.M.Appl.No.964 OF 2017 IN RSA NO. 1197 OF 2017 & IN RSA NO. 1197 OF 2017** # **APPENDIX OF RSA NO. 1197 OF 2017** **APPELLANTS'S ANNEXURES NIL** **RESPONDENTS'S ANNEXURES** **ANNEXURE R1(a)** **TRUE COPY OF THE ORDER DATED 5.6.2008 IN CM APPL.NO.74/2008 IN RSA NO.86/2008** **ANNEXURE R1(b)** **TRUE COPY OF THE ORDER DATED 7.6.2017 IN A.S.NO.52/2015 OF THE ADDITIONAL DISTRICT COURTIII, ALAPPUZHA** **//TRUE COPY// PA TO JUDGE**