State of Kerala represented by District Collector, Kottayam; Tahsildar Taluk Office, Kanjiirapppally; Asst. Executive Engineer, National Highway 220, Kanjiirapppally v. Tomy Dominic; Union of India represented by the Secretary, Ministry of Shipping, Road Transport and Highways, New Delhi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 3[RD] DAY OF FEBRUARY 2023 / 14TH MAGHA, 1944** **RSA NO.1000 OF 2012** **AGAINST THE JUDGMENT AS 136/2009 OF SUB COURT, PALA OS 146/2007 OF MUNSIF COURT, KANJIRAPPALLY** ## **APPELLANTS/APPELLANTS 1 TO 3/DEFENDANTS 1 TO 3:** 1 STATE OF KERALA REPRESENTED DISTRICT COLLECTOR, KOTTAYAM 2 TAHSILDAR TALUK OFFICE, KANJIRAPPALLY 3 ASST.EXECUTIVE ENGINEER, NATIONAL HIGHWAY 220, KANJIRAPPALLY BY SHEEBA.G, GOVERNMENT PLEADER ## **RESPONDENTS/R1 & 4TH APPELLANT/PLAINTIFF & 4TH DEFENDANT:** 1 TOMY DOMINIC, S/O.DOMINIC, KARIKKATTUKUNNEL HOUSE, CHIRAKKADAVU VILLAGE, VADAKKUMBHAGOM MURI, KANJIRAPPALLY.P.O PIN 686 507. 2 UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF SHIPPING, ROAD TRANSPORT AND HIGHWAYS NEW DELHI PIN 110014 BY ADVS. SRI.T.KRISHNAN UNNI (SR.)for R1 MANU S., DSG OF INDIA for R2 SMT.MEENA.A for R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20.01.2023, THE COURT ON 03.02.2023 DELIVERED THE FOLLOWING: _C.M.Appl.No.878 of 2012 in R.S.A.No.1000 of 2012_ 2 _and R.S.A.No.1000 of 2012_ ## **M.R.ANITHA, J** ****************** C.M.Appl.No.878 of 2012 in R.S.A.No.1000 of 2012 and R.S.A.No.1000 of 2012 ---------------------------------------------Dated this the 3[rd] day of February, 2023 ## **O R D E R & J U D G M E N T** C.M.Appl.No.878 of 2012 is filed by the appellant to condone the delay of 411 days in filing R.S.A.No.1000 of 2012. 2. The Deputy Thahasildar, Taluk Office, Kanjirapilly filed supporting affidavit contending that delay caused due to administrative exigencies occurred in the office of the respondent and there is no wilful laches in not filing the appeal in time. Hence the petition. 3. First respondent/plaintiff filed counter affidavit contenting that the reason stated for the delay is not sufficient to condone the long delay. No cogent and acceptable explanations have been offered. 4. Heard both sides. 3 _C.M.Appl.No.878 of 2012 in R.S.A.No.1000 of 2012 and R.S.A.No.1000 of 2012_ 5. Suit has been filed originally for perpetual injunction and amended subsequently seeking declaration of title and possession after filing written statement by the appellants/defendants. The dispute is with regard to item No.2 property having an extent of 20 sq.meters in which south western concrete pillar of the four storied building in plaint schedule property is situated. When there was attempt on the part of the defendants/appellants to trespass into plaint schedule property and demolish the portion of building, the suit was filed. 6. Appellants/defendants filed written statement contending that plaintiff included puramboke land in the plaint schedule property and denying the right and possession of plaintiff and predecessor over plaint item No.2 property. PW1 examined and Exts.A1 to A15, Exts.C1 to C2(a) were also marked from the side of plaintiff. There was no evidence from the side of appellants/defendants. The learned Munsiff on evaluating facts, circumstances and evidence, decreed the suit, as prayed for. Against which A.S.No.136/2009 was filed by appellants/defendants with an application under Section 5 of _C.M.Appl.No.878 of 2012 in R.S.A.No.1000 of 2012_ 4 _and R.S.A.No.1000 of 2012_ Limitation Act to condone the delay of 266 days. By the impugned judgment, the petition to condone the delay and appeal stand dismissed. Aggrieved by the same, the above R.S.A has been filed with the C.M.Application. 7. Hence the question for consideration is whether there is 'sufficient cause' to condone the delay of 411 days in filing the R.S.A. ## 8. In **Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy : 2013 (4) KLT Suppl. 59** **(SC)** a two Judge Bench of the Apex Court discussed about the approach to be adopted by courts while dealing with application for condonation of delay under Section 5 of the Limitation Act, 1963. Paragraph No.13 of the said decision is relevant to be quoted which reads thus: _“13. Recently in Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai[19], the learned Judges referred to the pronouncement in Vedabai v. Shantaram Baburao Patil [20] wherein it has been opined that a distinction must be made between a case where the delay is inordinate and a case where the delay is of few days and whereas in_ _C.M.Appl.No.878 of 2012 in R.S.A.No.1000 of 2012 and R.S.A.No.1000 of 2012_ 5 _the former case the consideration of prejudice to the other side will be a relevant factor, in the latter case no such consideration arises. Thereafter, the two-Judge Bench ruled thus: -_ _“23. What needs to be emphasized is that even though a liberal and justice-oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost._ _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 applicant 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.” Eventually, the Bench upon perusal of the application for condonation of delay_ _C.M.Appl.No.878 of 2012 in R.S.A.No.1000 of 2012 and R.S.A.No.1000 of 2012_ 6 _and the affidavit on record came to hold that certain necessary facts were conspicuously silent and, accordingly, reversed the decision of the High Court which had condoned the delay of more than seven years."_ 9. Hence the duty is upon the court in each case to determine whether there is sufficient cause offered by the parties. Whether there is negligence or inaction on the side of the party approaching the court in taking timely action has to be ascertained from the factors brought in by them as explanation. There is also distinction between cases where delay is inordinate and cases where delay is of few days and in the former case, the consideration of prejudice to the other side is a relevant factor and if the delay is of the few days, the question of prejudice is not of much relevance. 10. In **Basawaraj v. Special Land Acquisition Officer : 2013 (3) KLT Online 1108 (SC)** the meaning of the word 'sufficient cause' under Section 5 of the Limitation Act, 1963 has been dealt with in detail and paragraph No.9 of the said decision is relevant in this context to be extracted which reads thus: _C.M.Appl.No.878 of 2012 in R.S.A.No.1000 of 2012 and R.S.A.No.1000 of 2012_ 7 _“Sufficient cause is the cause for which defendant could not be blamed for his absence. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently" or "remained inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the Court that he was prevented by any “sufficient cause” from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay. The court has to examine whether the_ _C.M.Appl.No.878 of 2012 in R.S.A.No.1000 of 2012 and R.S.A.No.1000 of 2012_ 8 _mistake is bona fide or was merely a device to cover an ulterior purpose. (See: Manindra Land and Manndra Lnd and Building Corporation Ltd. v. Bhootnath Banerjee & Ors., AIR 1964 SC 1336; Lala Matadn v. A. Narayanan, AIR 1970 SC 1953; Parimal v.Veena @ Bharti AIR 2011 SC 1150; and Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai AIR 2012 SC 1629.)_ 11. In **University of Delhi v.** ## **Union of India (UOI) and Ors. : MANU/SC/1761/2019 :** **(2020) 13 SCC 745** while dealing with condonation of delay, it has been held that a liberal approach is to be taken in the matter of condonation of delay. That was a case in which respondent No.13 was permitted by the Delhi Development Authority to construct high rise multi-storied building in control zone of the appellant. Permission was allowed for construction on plot. That was leased out to Delhi Metro Rail Corporation by segregating that plot. Appellant raised several contentions against the construction and one of them was that construction was against the master plan Delhi – 2021. Appellant challenged the action in writ petition. Single Judge rejected the writ petition on the 9 _C.M.Appl.No.878 of 2012 in R.S.A.No.1000 of 2012 and R.S.A.No.1000 of 2012_ ground of delay and laches. Later, executive council of the appellant recommended to file intra court appeal. Therefore, Letters Patent Appeal happens to be filed with delay of 916 days with petition to condone the delay. Division bench rejected the application for condoning the delay without considering the merits of the matter against which appellant approaches the Apex Court. While disposing the matter, the Apex Court held that by and large a liberal approach is to be taken in the matter of condonation of delay. Consideration for condonation of delay would not depend on the status of the party, namely the Government or the public bodies so as to apply a different yardstick, but the ultimate consideration should be to render even handed justice to parties. Even in such cases, condonation of delay should not be automatic since the accrued right or the adverse consequence to the opposite party is also to be kept in perspective. So in that background, while considering condonation of delay, routine explanation should 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 10 _C.M.Appl.No.878 of 2012 in R.S.A.No.1000 of 2012 and R.S.A.No.1000 of 2012_ and will have to be weighed carefully by the courts based on the fact situation. Merely because the appellant is a public body is not a reasonable explanation for condonation of delay of 916 days and there should be reasonable explanations. When there is such a long delay and there is no proper explanation, laches would also come into play while noticing as to the manner in which a party has proceeded before filing an appeal. The delay offered in that case was two fold, i.e non availability of Vice Chancellor due to retirement and subsequent appointment of new Vice Chancellor, also that the matter was placed before the executive council and a decision was taken to file the appeal and the said process caused the delay. Evaluating the circumstances, it was held that the decision of the Division Bench in dismissing the LPA on the ground of delay of 916 days is justified and do not call for interference. 12. In **Poothadi Grama Panchayat v. S.C.Sukumaran : 2019 KHC 896** relied on by the counsel for respondents was a writ appeal filed with 2106 days delay. Appellant is a Government office and the reason offered for delay was missing of file and in _C.M.Appl.No.878 of 2012 in R.S.A.No.1000 of 2012_ 11 _and R.S.A.No.1000 of 2012_ the said circumstances, it was held that the reason offered to condone the delay was not sufficient. 13. **State of Kerala v. N.U.Poulose (Died) and Others : 2019 KHC 882** was a case in which arbitration appeal was filed with a delay of 1127 days. The reason stated in the delay condonation application is that the judgment of the court below was pronounced on 16.08.2016 and the application for obtaining certified copy of the judgment and decree was filed on 30.10.2018. Stamp paper was called for on 08.11.2018 and copy of the judgment and decree was obtained on 12.11.2018. In the said circumstances, it was held that there is absolutely no reason why the appellants did not file any application for obtaining certified copy of the judgment between 16.08.2016 and 30.10.2018. There is delay of more than two years and finding that the delay is not properly explained, the petition was dismissed and consequently appeal also rejected. 14. In the present case, the only reason stated by the Deputy Tahsildar in the affidavit attached to the petition to condone the delay of 411 days in filing the above R.S.A is _C.M.Appl.No.878 of 2012 in R.S.A.No.1000 of 2012_ 12 _and R.S.A.No.1000 of 2012_ administrative exigencies in the office of the petitioners. It is discernible from the affidavit that the judgment was pronounced on 07.01.2011. But application for certified copy was filed on 31.05.2011. It is further alleged that certified copy of the judgment was received on 04.08.2011. It was forwarded to the office of the deponent on 10.08.2011 and it was sent to the office of Advocate General on 21.10.2011 for examining the scope of appeal. It is further alleged that then it is forwarded to the office of Advocate General's office for preparing the appeal. That date is not stated in the affidavit. The appeal has been filed only on 23.07.2012. So, there is no proper explanation for that delay caused. In **Esha Bhattacharjee** the Apex Court had also guided a principle that an application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. The fact that the appellants are State and its officials is not a reason to apply a different yardstick for condonation of delay. Apart from the _C.M.Appl.No.878 of 2012 in R.S.A.No.1000 of 2012_ 13 _and R.S.A.No.1000 of 2012_ routine explanation of the administrative exigencies, no reasonable cause is forthcoming for condoning the delay of more than one year in filing the appeal in view of the settled principles of law above discussed. Hence it cannot be found that the petitioners/appellants offered sufficient cause for entertaining the petition for condoning the long delay of 411 days in filing the appeal. 15. It is true that the learned Government Pleader brought to my attention **Mandal Revenue Officer v. Goundla Venkaiah and Another : 2010 KHC 4011** . That was a case in which it has been alleged that the predecessor of the respondents illegally occupied 5 acres of land which is classified in the revenue records Kharizkhata – Sarkari and in 1965 and 1986 notices were issued under section 7 of Andra Pradesh Land Encroachment Act, 1905 but no order has been passed for eviction. In 1990, Mandal Revenue Officer filed application before the Special Tribunal constituted under the Land Grabbing Act for recovery of possession of 5 acres and the respondents contended that they acquired title by adverse possession and also that they _C.M.Appl.No.878 of 2012 in R.S.A.No.1000 of 2012_ 14 _and R.S.A.No.1000 of 2012_ are landless poor entitled to assignment of land as per board’s standing orders. But the appellant initiated proceedings under the Land Grabbing Act and the Special Tribunal allowed the application and declared that the scheduled land is a Government land and directed to handover possession to Government. The appeal preferred by the respondents was dismissed by the special court. The respondents took up the matter in writ petition and a Division Bench of the High Court did not disturb the finding of the Special Tribunal that the scheduled land is Government land, but set aside the orders on the premise that respondents have acquired title by adverse possession and they cannot be evicted being treated as land grabbers. But the Apex court held that dropping of proceeding under erstwhile Andhra Pradesh Land Encroachment Act, 1905 did not lead to an inference that respondents' possession was open and hostile against Government. Payment of land revenue and making of application to Government for assignment of schedule land or regularisation of possession was negation of respondents' plea that they had acquired title by adverse possession. _C.M.Appl.No.878 of 2012 in R.S.A.No.1000 of 2012_ 15 _and R.S.A.No.1000 of 2012_ 16. It appears that the argument advanced quoting **Mandal Revenue Officer** by the learned Government Pleader, is something concerning the merits of the matter, since the court below declared title of plaintiff over item No.2 property by adverse possession. 17. The property alleged to be encroached in this case by the 1[st] respondent is plaint item No.2 which is 20 square meters only and the portion of the building. So, the decision cited above cannot be squarely made applicable in this case. 18. It is further to be noted that the above R.S.A has been directed against the judgment and decree in A.S.No.136 of 2009 on the file of Sub court Pala which in turn arise out of judgment and decree in O.S.No.146/2007. The appeal has been dismissed consequent to dismissal of I.A.No.2032 of 2009 which was filed under section 5 of the Limitation Act, to condone the delay of 266 days in filing the appeal. As per the impugned order, the reason stated for the delay is that there was no proper information regarding the suit and delay in collection of official records and no other reason is stated in the affidavit for the delay of 266 16 _C.M.Appl.No.878 of 2012 in R.S.A.No.1000 of 2012 and R.S.A.No.1000 of 2012_ days. The respondent/plaintiff, on the other hand, contended that the original suit was contested one and the special officer was also deputed for conducting the suit in the trial court. Finding that the grounds stated are not available as per the records produced by the appellants, it was held that there is no sufficient ground to condone the delay and consequently, appeal was dismissed following the principles in **Pundlik J. Patil v. Executive Engineer : 2009 1 KLT S.N 25 (C No. 26) SC** . In such circumstances, what is the scope of interference by this Court while sitting in second appeal against the dismissal of the appeal consequent to the dismissal of the petition to condone the delay, is also relevant. 19. In **K. Subbarayudu v. Special Deputy Collector (Land Acquisition) : (2017) 12 SCC 840,** a two Judge Bench of the Apex Court had occasion to consider the scope of interference when court concerned exercising its discretion either condoning or declining to condone the delay and it has been held that normally superior court will not interfere in exercise of such discretion. It is also held that the true guide is whether the _C.M.Appl.No.878 of 2012 in R.S.A.No.1000 of 2012_ 17 _and R.S.A.No.1000 of 2012_ litigant has acted with due diligence. Here, first appellate court while considering the petition to condone delay found that the reason stated for condoning the delay is not seen available as per records and hence petition to condone the delay has been dismissed. Even after the dismissal of first appeal on the ground of delay, the 2[nd] appeal has also been filed with delay of 411 days. 20. Absence of diligence and inaction are writ large on the part of the petitioners. Mere fact that State and its officials are the appellants by itself is not a reason to condone the delay. So, I am of the considered view that petitioners/appellants failed to offer sufficient reason to condone the delay. In the result, petition to condone the delay and Regular Second Appeal stand dismissed. In the facts and circumstances, there is no order as to cost. ## (sd/-) **M.R.ANITHA, JUDGE** jsr/ True Copy P.S to Judge