Secretary, Kerala State Electricity Board v. A.J. Thomas @ Joseph Thomas

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN** **TUESDAY, THE 19TH OCTOBER 2010 / 27TH ASWINA 1932** **RSA.No. 1308 of 2009()** **---------------------AS.259/2008 of ADDL.DISTRICT COURT,KOTTAYAM OS.307/2002 of PRL.SUB COURT,KOTTAYAM** **....................** ## **APPELLANTS/APPELLANTS/DEFENDANT (S):** **--------------------** **1. SECRETARY, KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM.** **2. ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, KERALA STATE ELECTRICITY BOARD, ETTUMANNOOR.** **3. JUNIOR ENGINEER, KERALA STATE ELECTRICITY BOARD, MANJOOR, KURUPPANTHARA 686 603.** **BY ADV. SRI. ASOK M.CHERIYAN, SC, KSEB** ## **RESPONDENT(S):** - **---------------** **A.J.THOMAS @ JOSEPH THOMAS, AGED 80 YEARS, CHARTERED ACCOUNTANT, RESIDING AT SUBHA BHAVAN, NO. 40/407, MAHAKAVI, VYLOPPILLY ROAD, PALARIVATTOM P.O, COCHIN 682 025.** **ADV. SRI.NELSON J.MANAYIL** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **S.S.SATHEESACHANDRAN, J. ------------------------------R.S.A.NO.1308 OF 2009 ----------------------------------Dated this the 19[th] day of October, 2010** ## **J U D G M E N T** The appellants are a statutory authority and two of its officers, and the challenge in the appeal is against the rejection of their appeal preferred against the decree awarding damages of a sum of Rs.72,000/- with interest and costs to the respondent/plaintiff, towards delay in restoring electric connection to his residential building. The appellants had preferred the appeal against the decree of the trial court before the lower appellate court with a petition to condone delay of 238 days. The reason stated for condoning the delay was that by mistake, the copies of judgment and decree with the case bundle was entrusted to the Standing counsel at Ernakulam, after getting administrative sanction from the superior level, on the premise that the appeal would lie only before the High Court. However, later, the Standing counsel entrusted with the file, **R.S.A.NO.1308/2009** **2** after going through the records of the case, noticing that the appeal would lie only before the District Court, the records were collected back and then the appeal was presented before the lower appellate court with the petition to condone delay. The lower appellate court, after examining the merit of the delay sought to be condoned with reference to the objections raised by the respondent/plaintiff, came to the conclusion that even if license was given to the time taken for presentation of the appeal before the High Court, accepting the cause pleaded by the appellants, then also it was a case where there was more delay than the period of limitation prescribed for presentation of appeal before the High Court. In that view of the matter, the lower appellate court found that the petition filed by the appellants for condoning the delay, cannot be entertained, and, accordingly, that petition was dismissed, with the result of rejecting the appeal as well. 2. Though there is some controversy as to whether a second appeal would lie as against the dismissal of an appeal by **R.S.A.NO.1308/2009** **3** the lower appellate court consequent to the rejection of a petition to condone delay, having regard to the conflicting views expressed by the Apex Court on that question as given expression to in **Chandi Prasad v. Jagdish Prasad (2004 (3) KLT 654 (SC)) and Shyam Sundar Sarma v. Pannalal Jaiswal (2005 (1) KLT 198 (SC))** , I have entertained this appeal and notice ordered, and in response thereto, the respondent/plaintiff has also entered appearance. 3. I heard the counsel on both sides. Perusing the order passed by the lower appellate court dismissing the petition for condonation of delay with reference to the submissions made by the counsel on both sides, I find that a narrow myopic view had been taken by the court below in examining the petition moved under Section 5 of the Limitation Act for condoning the delay in preferring the appeal. In the absence of culpable negligence, deliberate latches or default by the party, a liberal approach is taken by the court in condoning delay, but, of course if the party is able to show some cause satisfying the conscience of the court **R.S.A.NO.1308/2009** **4** for condoning the delay and entertaining the appeal to have its disposal on merits. It is apposite in the context to take note of the guidelines given by the Apex Court in **Collector, Land Acquisition, Anantnag and another v. Mst.Katiji and others (AIR 1987 SC 1353).** How the sufficient cause covered by Section 5 of the Limitation Act has to be examined with reference to the condonation of delay applied for, it has been held that the expression “sufficient cause” employed by the legislature has to be given elasticity to enable the courts to apply the law in a meaningful manner, which subserves the ends of justice, as it being the life purpose for the existence of the institution of courts. Taking note that the liberal approach to be followed in condonation of delay, time and again reminded by the Apex Court, has not percolated down to the courts in the hierarchy certain guidelines are enunciated in the above decision how a justice oriented approach has to be followed in the matter. The court has to presume unless the contrary is established that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides, that a **R.S.A.NO.1308/2009** **5** litigant does not stand to benefit by resorting to delay as he runs a serious risk in view of the delay caused in vindicating his cause challenging the adverse order. In the present present case, it is seen, the court below has approached the question, the cause pleaded by the appellants for condonation of delay, as if there was deliberate and culpable negligence on their part in preferring the appeal in time. Going through the order of the court below passed in the petition to condone delay, it is seen, if the appeal, was required to be filed before the High Court, then such period would have expired hardly one week before the closing of the courts. When that be the case, if due license is given for transmitting of the records from the senior counsel's office at Ernakulam to the office of the counsel at the lower court to present the appeal, that too, after getting the administrative sanction required from the superior level of the 1[st] appellant, naturally, there was no possibility of preferring the appeal before re-opening of the courts. The court below has also taken note that the appellant has shown cause for condoning the delay at least from 14.5.2008 onwards, which fell within the period when **R.S.A.NO.1308/2009** **6** the court remained closed. That be the fact situation presented, this was a case where the court below should have taken a liberal approach and condoned the delay in filing the appeal. However, in the present second appeal, interference with the order passed by the lower appellate court rejecting the appeal consequent to the dismissal of the delay condonation petition of the appellants can be only subject to terms compensating the injury and hardship likely to be suffered to the respondent/plaintiff. So much so, the delay in preferring the appeal before the court below shall stand condoned subject to payment of costs of Rs.1,500/- (Rupees thousand five hundred only) to the respondent. Costs so ordered shall be paid to the counsel appearing for the respondent in the appeal before this Court within a period of ten days. If costs is paid within the time fixed and a memo filed within a period of two weeks, the appeal shall stand allowed and the case remitted to the court below, with the order dismissing the appeal and I.A.No.1607 of 2008 in A.S.No.259 of 2009 as reversed. In that event, the lower appellate court shall take back A.S.No.259 of 2008 on its file and **R.S.A.NO.1308/2009** **7** dispose the appeal within a period of four months from the date of receipt of a copy of this judgment. In default of payment of costs as directed above, the present appeal shall stand dismissed without any further order. Appeal is disposed of as indicated above, directing both sides to suffer their costs. ## **S.S.SATHEESACHANDRAN JUDGE** prp In compliance of the direction in the judgment dated 19.10.2010 in R.S.A.No.1308/2009, costs of ` 1,500/- has been paid to the counsel for the respondent as per memo c.f 6633/2010 dated 28.10.2010. Sd/Registrar (Judicial) **R.S.A.NO.1308/2009 8** **R.S.A.NO.1308/2009 9**