Thampan Thomas and M C Philip v. K.S. Varghese

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 16[TH] DAY OF SEPTEMBER 2022 / 25TH BHADRA, 1944** **RSA NO. 289 OF 2022** **AGAINST THE JUDGMENT DATED 09.08.2017 IN AS 124/2012 OF ADDITIONAL** **DISTRICT COURT-I, MAVELIKKARA THAT WAS FILED AGAINST THE JUDGMENT AND DECREE DATED 31.01.2011 IN OS 36/2010 OF SUB COURT, CHENGANNUR** ## **APPELLANTS/APPELLANTS/DEFENDANTS:** - **1 THAMPAN THOMAS, AGED 85 YEARS, S/O CHERIAN, MANATHARAYIL HOUSE, VENMONY PADINJATTUM MURI, VENMONY VILLAGE, CHENGANNUR TALUK-689 509.** - **2 M C PHILIP, AGED 79 YEARS S/O CHERIAN, MANATHARAYIL DAS BHAVANAM, CHERUVALLOOR MURI, CHERIYANAD VILLAGE, CHENGANNUR TALUK-689 506.** **BY ADVS. GOKUL G. KRISHNAN DEAGO JOHN K KEVIN JAMES** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **K.S.VARGHESE, AGED 79 YEARS S/O ZACHARIA SAMUEL, NALLOTTIL VEETTIL, VENMONY PADINJATTUM MURI, VENMONY VILLAGE, CHENGANNUR TALUK-689509.** ## **BY ADV N.ASHOK KUMAR** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON** ## **16.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** C.M.A.No.1 of 2022 in R.S.A No. 289 of 2022 and R.S.A No. 289 of 2022 **2** ## **M.R.ANITHA , J.** --------------------------------------------- ## **C.M.Appl. No.1/2022 in R.S.A No. 289 of 2022 and R.S.A No. 289 of 2022** --------------------------------------------- **Dated this the 16[th] day of September, 2022.** ## **ORDER/JUDGEMENT** Petition has been filed under Section 5 of the Limitation Act to condone the delay of 880 days in filing the appeal. 2. 1[st] appellant filed supporting affidavit for and on behalf of 2[nd] appellant/2nd defendant contending that judgment and decree in A.S.No.124/2012 was passed on 09.08.2017, but the counsel to whom the case was entrusted did not inform him about the dismissal of the appeal and the appeal ought to have been filed on or before 07.11.2017. On 03.01.2022, 1[st] petitioner got show cause notice of warrant of arrest from the Sub Court, Chengannur. Then, he contacted his son who works abroad. The son after procuring the address of the Advocate on 20.01.2022 contacted the advocate and it C.M.A.No.1 of 2022 in R.S.A No. 289 of 2022 and R.S.A No. 289 of 2022 **3** was informed that appeal was dismissed on 09.08.2017 by the appellate court. It was only on 21.01.2022 he came to know about the dismissal of the appeal. According to him, he is an age-old man having 85 years. Only because the dismissal of the appeal was not informed by the Advocate, the delay has been caused. Thereafter, the petitioner was in search of an Advocate to entrust the file. Due to pandemic situation, he could not find a suitable Advocate in time and hence file was entrusted with Advocate on 20.02.2022 and the appeal was filed on 23.03.2022, hence, the delay of 880 days. There is no willful latches from his part in the above matter. 3. In this context, the learned counsel placed reliance on State of _**Hariyana v. Chandra Mani & Ors.**_ [1996 (3) SCC 132], _**Perumon Bhagavathy Devaswom v. Bhargavi Amma**_ [(2008) 8 SCC 321], **State of Bhihar and Others v. Kameshwar Prasad Singh and Another** , [2000 (9) SCC 94], _**Kumar & Ors. v. Karnataka Industrial Coop. Bank Ltd. & Anr.**_ , [2013 (11) SCC 668], _**Ajay pal & Ors. v. State of Haryana & Ors.,**_ [2015 (14) SCC 462] and _**Sheshagiri Setty B.S. and Others v. State of Karnataka and Others**_ C.M.A.No.1 of 2022 in R.S.A No. 289 of 2022 and R.S.A No. 289 of 2022 **4** [2016 (2) SCC 123]. 4. The learned counsel for respondent filed counter affidavit contending that there is no sufficient cause to condone the long delay of 880 days in filing the appeal. It ought to have been filed on or before 07.11.2017. It is also contended that the allegation that petitioner received show cause notice in E.P.No.28/2012 on 03.01.2022 is false. The E.P.No.28/2012 in O.S.No.36/2010 was filed on 24.03.2012 itself and the petitioner had received Rule 22 notice in the said E.P. on 12.06.2012 itself. The appellant had knowledge of the disposal of A.S.No.124/2012 on 09.08.2017 itself. The same Advocate had appeared for the appellants herein before the lower appellate court as well as execution court. Hence he has knowledge of the dismissal of the 1[st] appeal in time. Nothing is stated regarding the date of knowledge of the 2[nd] appellant and why he has not preferred R.S.A. in time. Respondent is an Ex-service man aged 80 years. The petitioner had destroyed his few rubber trees and he sought for compensation of Rs.1,50,000/-. The Trial court granted Rs.17,700/- with costs and also passed permanent C.M.A.No.1 of 2022 in R.S.A No. 289 of 2022 and R.S.A No. 289 of 2022 **5** prohibitory injunction against him. That was confirmed in appeal. The present appeal has been filed only to delay the execution proceedings hence he prayed for dismissal of the petition. 5. Heard both sides. 6. The contention of the learned counsel for the appellants/defendants is that defendants came to know about the decree in appeal only on 03.01.2022 when he received the show cause notice issued by Sub Court, Chengannur in the execution proceedings. But the learned counsel for the respondent/plaintiff has got specific contention that same Advocate was appearing for the appellant before the trial court as well as 1[st] appellate court and the E.P in the above case was filed as early as on 24.03.2012 and the petitioner has received Rule 22 notice on 12.06.2012 itself. The fact that same Advocate was appearing for the defendants before the Trial court as well as 1[st] appellate court is not seen denied. So, the contention of the learned counsel that only on receiving the copy of the show cause notice he came to know about the judgment and decree of the 1[st] appellate court is not seems to be correct. Appellants C.M.A.No.1 of 2022 in R.S.A No. 289 of 2022 and R.S.A No. 289 of 2022 **6** have not produced any other convincing materials to prove that the appellants came to know about the dismissal of the appeal only on 03.01.2022 when he received the show cause notice of warrant of arrest. The affidavit also does not reveal as to when exactly the defendants finally contacted the Advocate after entrusting the file with Advocate in the year 2012. The judgment was pronounced only on 09.08.2017. So it is very difficult to swallow the allegation of the defendant that they came to know about the dismissal of the appeal on 03.01.2022, that is almost ten years after the filing of appeal. It could not be imagined that for ten years after entrusting the file with an Advocate a party will keep quiet without enquiring about the progress of the appeal. 7. The learned counsel placed reliance on _**State of Hariyana v. Chandra Mani & Ors.**_ [1996 (3) SCC 132], _**Kumar & Ors. v. Karnataka Industrial Coop. Bank Ltd. & Anr.**_ , [2013 (11) SCC 668], _**Ajay pal & Ors. v. State of Haryana & Ors.,**_ [2015 (14) SCC 462] and _**Sheshagiri Setty B.S. and Others v. State of Karnataka and Others**_ [2016 (2) SCC 123], _**Perumon Bhagavathy**_ C.M.A.No.1 of 2022 in R.S.A No. 289 of 2022 and R.S.A No. 289 of 2022 **7** ## _**Devaswom v. Bhargavi Amma**_ [2008 (8) SCC 321] etc. ## 8. _**Perumon Bhagavathy Devaswom v. Bhargavi Amma**_ _[(2008) 8 SCC 321]_ was a case of setting aside the abatement of an appeal under Order 22 Rule 4 and the delay caused was 394 days. In that case, Devaswom contended that it had given valid reasons for condoning the delay since the appeal was filed in 1993 and the current executive committee assumed office only in 2003 and they were not aware of either pendency of the appeal or death of the 2[nd] respondent and hence there is no negligence from their part. The Honourable Apex Court dealt with the principles to be born in mind by court while considering the application for setting aside the abatement and the condition under which the courts should condone the delay and set aside the abatement. So it has no direct bearing to the fact situation of the case. 9. **State of Bihar and Others v. Kameshwar Prasad Singh and Another** , [2000 (9) SCC 94] is a case in which certain writ petition was filed by the police officers claiming seniority and promotion over each other and High Court allowed the petitions and C.M.A.No.1 of 2022 in R.S.A No. 289 of 2022 and R.S.A No. 289 of 2022 **8** provided for contempt of court in the case of non compliance of order and state challenged the matter in appeal. While condoning the delay, the Apex Court held that High Court order is violative of Article 14 as it encouraged negative equality etc. In _**Kumar & Ors.**_ _**v. Karnataka Industrial Coop. Bank Ltd. & Anr.**_ , _**Dhiraj Singh (Dead) through Legal Representatives and Others v. State of Haryana and others, Ajay pal & Ors. v. State of Haryana & Ors.,**_ and _**Sheshagiri Setty B.S. and Others v. State of Karnataka and Others**_ etc., it was reminded by the Apex Court that technicalities should not stand in the way of rendering justice. So, the said decisions were also held in a different context. 10. It is relevant in this context to quote _**Oriental Aroma**_ _**Chemical Industries Ltd v. Gujarat Industrial Development Corporation and Another**_ [2010 (5) SCC 459; 2010 (2) SCC (Criminal) 1291; 2010 KHC 4131] wherein while dealing with Section 5 and Section 3 of the Limitation Act, it was held that the expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to C.M.A.No.1 of 2022 in R.S.A No. 289 of 2022 and R.S.A No. 289 of 2022 **9** enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate. In that case, the question arouse of condonation of delay of more than four years in filing the appeal against the judgment and decree passed by a civil court. After detailed discussion of facts and circumstances, Apex Court set aside the impugned order of condoning the delay passed by the High Court and delay condonation petition is dismissed. 11. In _**Vedha bai v. Santha Ram bahu rau pateel**_ [2001 (9) SCC 106; AIR 2001 SC 2582; 2002 KHC 292], it has been held that while exercising powers under Section 5 of the Limitation Act court has to adopt pragmatic approach and a distinction has to be made between a case where the delay is inordinate and case where the delay is only few days. In the former case, the consideration of prejudice to the other side will be a relevant factor so that case calls C.M.A.No.1 of 2022 in R.S.A No. 289 of 2022 and R.S.A No. 289 of 2022 **10** for a more cautious approach but in the latter case (where the delay is of few days), no such consideration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard. The court has to exercise its discretion on the facts of each case keeping in mind that in construing the expression “sufficient cause” principle of advancing substantial justice is of prime importance. 12. In the present case, it has come out that judgment in 1[st] appeal has been pronounced on 09.08.2017. Respondent/plaintiff has got a specific case that 2012 itself they have filed execution petition and Rule 22 notice was issued to the petitioner and it was received by the appellants/defendants on 12.06.2012 itself. It has also come out that same advocate was appearing for the appellant before the trial court as well as the first appellate court. The contention put forwarded by the appellant is that he came to know about the dismissal of the appeal only on receipt of show cause notice of arrest warrant on 03.01.2022, ie, almost after ten years of filing of the appeal also. Hence, case of the appellants is that they C.M.A.No.1 of 2022 in R.S.A No. 289 of 2022 and R.S.A No. 289 of 2022 **11** did not enquire about the progress of appeal for about 10 years after entrustment of file with the counsel. It would speak in volumes, the latches and negligence on the part of the appellants. The records of this case also would go to show that suit was one for damages for cutting rubber saplings for Rs.1,50,000/- as well as prohibitory injunction. The trial court after appreciating the facts and circumstances and evidence, decreed the suit allowing to realize Rs.17,700/- from the 1[st] defendant with cost. Both defendants also are permanently injuncted from trespassing into the plaint schedule property and causing damages in the boundary fencing etc. In appeal, that was confirmed, against which this appeal has been filed. No substantial question of law also emerges for consideration. So, in view of the facts and circumstances, I am of the considered view that the appellants/defendants failed to offer sufficient cause for condonation of 880 days of delay caused in filing the appeal. Hence, this petition is found to be devoid of any merit and hence, dismissed. C.M.A.No.1 of 2022 in R.S.A No. 289 of 2022 and R.S.A No. 289 of 2022 **12** ## **R.S.A No. 289 of 2022** In view of the dismissal of the C.M.A.No.1/2022 for condoning the delay, RSA automatically stands dismissed. rps/ Sd/- **M.R.ANITHA, JUDGE**