IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
Friday, the 17th day of June 2022 / 27th Jyaishta, 1944
C.M.APPLN.1/2019 IN RSA NO. 477 OF 2019
AS 48/2014 OF SUB COURT,KOTTARAKKARA
OS 373/2004 OF MUNSIFF COURT,PUNALUR
APPLICANTS/APPELLANTS/APPELLANTS:
1. STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, KOLLAM.
2. TAHSILDAR,TALUK OFFICE, PUNALUR
3. VILLAGE OFFICER, VILLAGE OFFICE, EDAMON.
RESPONDENT/RESPONDENT/RESPONDENT:
SHAHUL HAMEED RAWATHER, S/O.MOHAMMED KHAN RAWATHER, HANUMANTHA VILASAM
BUNGLOW, EDAMON(PO), EDAMON VILLAGE, PUNALUR TALUK.
Application praying that in the circumstances stated in the affidavit filed therewith the High Court be
pleased to condone the delay of 1047 days in filing the Regular Second Appeal.
This application coming on for orders upon perusing the application and the affidavit filed in support
thereof, and upon hearing the arguments of Government Pleader for the petitioners and of SRI.SUBHASH
SYRIAC Advocate for the Respondent, the court passed the following :
M.R.ANITHA, J
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C.M.Appl.No.01 of 2019
in
R.S.A.No.477 of 2019
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Dated this the 17th day of June, 2022
ORDER
This application has been filed under Section 5 of the Limitation Act seeking to condone the delay of 1047 days in filing the Regular Second Appeal.
2. Appellants herein are the defendants in O.S.No.373/2004 filed by the respondent/plaintiff for declaration of title and possession and for injunction restraining the defendants from initiating any action against him under the Land Conservancy Act. The suit was decreed in favour of the respondent/plaintiff against which the appellants/defendants filed A.S.No.48/2014 along with I.A.No.1240/2014 before the Sub Court, Kottarakkara seeking to condone the delay of 1860 days in filing the appeal. Both the petition and appeal were dismissed by the Sub Court against which this Regular Second Appeal is preferred by the appellants.
3. Deputy Tahsildar (LR), Taluk office, Punalur filed C.M.Appl.No.01 of 2019 in R.S.A.No.477 of 2019 2 supporting affidavit on behalf of the appellants explaining the reasons for the delay caused in filing that appeal. It is alleged that O.S.No.373/2004 was filed by the plaintiff before the Munsiff's Court, Punalur for permanent prohibitory injunction from trespassing into the plaint schedule property and for declaration that the plaintiff has absolute title over the property having an extent of 86 cents and excess land which measures a total of one acre of dry land comprised in Sy.No.78/16/A, 78/16B and 79/2B/91 of Edamon Village of Punalur Taluk. The petitioner contended that Land Conservancy proceedings No.LC No.66/01 was initiated against the illegal cutting and removal of Anjili tree from the puramboke land owned by the State. A fine of Rs.200/- and Rs.1,84,300/- towards value of tree were imposed upon the plaintiff by the second respondent. Munsiff Court decreed the suit against which State preferred appeal before Sub Court, Kottarakkara as A.S.No.48/2014 in which I.A.No.1240/2014 was filed for condonation of delay of 1860 days in filing that appeal. The delay condonation petition and the appeal was dismissed by C.M.Appl.No.01 of 2019 in R.S.A.No.477 of 2019 3 the Sub Court, Kottarakkara as per order dated 29.02.2016.
4. The intimation for the disposal of appeal and I.A has been received from the Additional Government Pleader, Kottarakkara on 22.08.2016 and the same was reported to District Collector, Kollam on 28.09.2016 to get orders for further proceedings in the case. Then, the case file was sent to the District Law Officer to examine the scope for a second appeal. From November 2017 onwards, the office of the 1 st respondent was fully engaged in the relief and rehabilitation activities of the victims of Okhi Cyclone Disaster in the coastal areas of Kollam District. After getting the legal opinion of the District Law Officer, Kollam for filing the second appeal before this Court, the District Collector, Kollam has authorised the second respondent to place the file before the Advocate General Office, Ernakulam with connected records on 25.08.2018. As directed from the Advocate General Office, Ernakulam, on 18.07.2018, a copy of the judgment and decree in A.S.No.48/2014 and O.S.No.373/2004 were submitted on 29.07.2018. The concerned file of the Taluk C.M.Appl.No.01 of 2019 in R.S.A.No.477 of 2019 4 office was submitted on 03.09.2018. As directed from that office, a letter was sent to Additional Government Pleader, Kottarakkara to get the certified copies of appeal memorandum of A.S.No.48/2014 and I.A.No.1240/2014 from the Sub Court, Kottarakkara on 04.10.2018. As it was not received in time, the matter was also intimated to the District Government Pleader on 25.11.2018. The application for certified copy of appeal memorandum and order in I.A.No.1240/2014 in A.S.No.48/2014 was filed on 21.12.2018. Stamp paper was called for on 21.12.2018 and copy was ready on 27.12.2018. The date notified for certified copy was on 05.01.019 and it was received on 28.12.2018. The copy of the same was received in the office of the second respondent on 11.01.2019 and it was despatched to the Advocate General Office, Ernakulam on 11.01.2019 itself.
5. On 05.03.2019, a letter from Advocate General dated 27.02.2018 has been received directing to submit the reasons for delay. On 14.03.2019, the details regarding the delay occurred was submitted before the AG's office. Thereafter, on 18.03.2019, C.M.Appl.No.01 of 2019 in R.S.A.No.477 of 2019 5 an intimation from the A.G's office was received over phone regarding a discussion in the matter. On 23.03.2019, the matter was discussed with the Government Pleader concerned and he prepared the petition to condone the delay and finalised the Regular Second Appeal and all other connected interlocutory applications. Hence the delay occurred, according to the petitioner, was due to various administrative procedural formalities and is not willful. Hence the petition.
6. Plaintiff/respondent filed counter affidavit contending that the application is not maintainable either in law or on facts. He is the absolute owner in possession of 87 cents of property comprising in Sy.Nos.78/16A, 78/16B, 79/2B/91 of Edamon Village. Mutation has been effected in his favour under Thandaper No.6055. A portion of the property is situated on the side of the public road. Within that boundary, there stood two Anjili trees owned by the respondents. When he cut and removed one Anjili tree, a dispute arose between the revenue authorities and the respondent with regard to the ownership of Anjili trees. Revenue C.M.Appl.No.01 of 2019 in R.S.A.No.477 of 2019 6 authorities took steps to realise the fine and value of the tree from the respondent. Hence he filed O.S.No.373/2004 before the Munsiff's Court, Punalur against the appellants for declaration of title and possession over the property and for injunction. Survey commission was deputed and after considering all evidences, the court decreed the suit on 19.03.2009 in favour of the respondent.
7. No appeal has been filed by the respondents against the decree and judgment and it became final before 5 years and 8 months back. Respondent transferred a portion of the said property in favour of his daughter Smt.Seenath Khan and she further transferred 12 cents to Mr.V.V.Jose and Mrs.Suja Jose as per Sale Deed No.5946/2010 of S.R.O., Punalur. Even though the respondent and transferees applied for mutation before appellants 2 and 3, they refused to effect mutation in favour of the respondent and subsequent transferees. Ultimately, respondent approached Lok Ayukta as per Complaint No.956/2014 seeking for a direction to effect mutation and for issue of possession certificate. Only after that complaint, C.M.Appl.No.01 of 2019 in R.S.A.No.477 of 2019 7 appellants filed A.S.No.48/2014 before the Sub Court, Kottarakkara with a petition to condone the delay of 1860 days. The Sub Court dismissed the appeal and delay condonation petition.
8. It is denied that it was due to administrative delay that the appellants could not prefer the appeal against the judgment and decree. It is equally false to contend that the 1 st appellant was engaged in the relief and rehabilitation activities of Okhi Cyclone Disaster. So, there is no valid reason stated by the appellants to condone the delay of 1047 days. Respondent is a senior citizen. It is also contended that there is a delay of 1890 days. According to the petitioner, the appellants are not entitled to get the delay condoned.
9. After filing the counter affidavit by the respondent/plaintiff, an additional affidavit has been filed by the second appellant contending that, before obtaining legal opinion from the District Law Officer, the respondent in this case filed a representation before the Governor of Kerala to give appropriate C.M.Appl.No.01 of 2019 in R.S.A.No.477 of 2019 8 direction to the Tahsildar, Punalur to effect mutation of the portion of the property gifted by him to his daughter Seenath Khan. A detailed report in this regard has been submitted to the Hon'ble Governor of Kerala on 22.11.2017.
10. From November, 2017 onwards the office of the first appellant was engaged in the relief and rehabilitation activities of the victims of the Okhi Cyclone Disaster. In view of the same, it was not possible to obtain assistance regarding the files from the officials till 23.05.2018. Okhi Cyclone hit southern coast of Kerala in November, 2017 and calamities on a large scale had happened in both the coastal areas of Kollam District and the High Ranges of Punalur Taluk. In Punalur Taluk itself, two people died and many people were injured as trees were uprooted due to heavy wind. The Kollam Thenkasi National Highway 744 was blocked and large scale damage were happened to houses, buildings and properties in many of the villages of Punalur Taluk. Fishermen were also missing in coastal area as fishing boats were capsized in the sea. So, office of the appellants were fully engaged in the C.M.Appl.No.01 of 2019 in R.S.A.No.477 of 2019 9 relief and rehabilitation activities. The delay of 186 days from 23.05.2018 to 25.11.2018 is occurred in the office of the Advocate General for preparation of the Second Appeal. Thereafter, mistakenly it was informed that certified copy of the order in I.A.No.1240/2014 has to be obtained though certified copy of the order has already been produced. Thereafter, a fresh application for certified copy was filed on 13.03.2019 and it was received on 30.03.2019 and appeal was filed on 12.04.2019. Delay of 138 days from 25.11.2018 till 12.04.2019 occurred as a result of it, which was a bona fide mistake.
11. Heard learned Government Pleader and the learned counsel for the respondent.
12. When the delay petition came up for hearing, it is submitted by the learned Government Pleader that the delay has been caused only due to administrative exigencies and there is no willful laches on the part of the petitioners in not filing the appeal in time and taking into account the larger public interest since the trespass by the respondent is upon the Government C.M.Appl.No.01 of 2019 in R.S.A.No.477 of 2019 10 land, a lenient view has to be taken and the delay is to be condoned.
13. Learned counsel for the respondent/plaintiff, on the other hand, would contend that A.S.No.48/2014 has been filed before the Subordinate Judge's Court, Kottarakkara along with a petition to condone the delay of 1860 days and after dismissal of that petition, again this appeal has been filed with a petition to condone the delay of 1047 days. So, there is no satisfactory explanation for the inordinate delay of about two years for filing the second appeal after the dismissal of the first appeal by the subordinate Judge's Court.
14. Learned counsel for the respondent also attempted to establish that a well considered judgment and decree was passed by the learned Munsiff after appreciating the facts and circumstances and a Survey Commission was also taken to identify the property and the petitioners could not produce any material to prove that the Government has any right over any inch of property in possession of the plaintiff. Anyway, I am not C.M.Appl.No.01 of 2019 in R.S.A.No.477 of 2019 11 on the merits of the matter at this stage.
15. Learned counsel for the respondent placed reliance on Rafeek and Another v. K.Kamarudeen and Another : 2021 (4) KHC 34 wherein while dealing with Section 18 of the Kerala Buildings (Lease and Rent Control) Act, 1965 it has been held in paragraphs 15 and 16 which read as follows:
"15. Though the expression 'sufficient cause' employed in Section 5 of the Limitation Act, 1963 is adequately elastic to enable the courts to apply the law in a meaningful manner, which subserves the ends of justice, as held by the Apex Court in Katiji [(1987) 2 SCC 107], the concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play, as held by the Apex Court in Esha Bhattacharjee [(2013) 12 SCC 649]. Inordinate delay, which attracts doctrine of prejudice, warrants strict approach, whereas, a delay of short duration or few days, which may not attract doctrine of prejudice, calls for a liberal delineation. An application for condonation of delay should be drafted with careful concern and no court shall deal with such an application in a routine manner.
C.M.Appl.No.01 of 2019 in R.S.A.No.477 of 2019 12
16. In Woolcombers of India Ltd. v. Woolcombers Workers Union [(1974) 3 SCC 318] the Apex Court, while considering the challenge made against an award under Section 11 of the Industrial Disputes Act, 1947, held that the giving of reasons in support of their conclusions by judicial and quasi judicial authorities when exercising initial jurisdiction is essential for various reasons. Firstly, it is calculated to prevent unconscious unfairness or arbitrariness in reaching the conclusions. The very search for reasons will put the authority on the alert and minimise the chances of unconscious infiltration of personal bias or unfitness in the conclusion. The authority will adduce reasons which will be regarded as fair and legitimate by a reasonable man and will discard irrelevant or extraneous considerations. Secondly, it is a well known principle that justice should not only be done but should also appear to be done. Unreasoned conclusions may be just but they may not appear to be just to those who read them. Reasoned conclusions, on the other hand, will have also the appearance of justice. Thirdly, it should be remembered that an appeal generally lies from the decisions of judicial and quasi judicial authorities to the Apex Court by special leave granted under Article
136. A judgment which does not disclose the C.M.Appl.No.01 of 2019 in R.S.A.No.477 of 2019 13 reasons, will be of little assistance to the court. The court will have to wade through the entire record and find for itself whether the decision in appeal is right or wrong. Therefore, the Apex Court emphasised that judicial and quasi judicial authorities should always give the reasons in support of their conclusions."
16. In that case, though the extent of delay caused was only two days since the appellate authority without adverting to the contentions raised in the objections filed by the revision petitioners as well as the affidavit filed in support of the interlocutory application passed a cryptic order and hence ultimately it was set aside.
17. In the present case, second petitioner/second appellant filed supporting affidavit giving a detailed narration with respect to the date of order and about the Okhi Cyclone Disaster and the rehabilitation activities in which the revenue officials were engaged from November, 2017 onwards etc. has been described in detail. Subsequently, an additional affidavit, after filing a counter affidavit by the respondent/plaintiff was also filed. In that additional affidavit, it has been averred that the petition C.M.Appl.No.01 of 2019 in R.S.A.No.477 of 2019 14 to condone the delay and subsequently the appeal was dismissed by the Sub Court, Kottarakkara on 29.02.2016. But, the intimation from the Additional Government Pleader has been received only on 22.08.2016 and it was reported to the District Collector on 28.09.2016 to get orders. Then, 1st respondent sent the file to the District Law Officer and from November, 2017 onwards, office of 1st respondent was engaged in the rehabilitation activities of the victims of Okhi Cyclone Disaster. After getting the legal opinion of the District Law Officer, Kollam, the District Collector authorised the second respondent to place the file before the Advocate General's office with connected records on 23.05.2018. Again, there was a demand of certified copy of the order and it was submitted on 11.01.2019.
18. It is true that in Majji Sannemma v. Reddy Sreedevi : 2021 (6) KLT online 1199 a two Judge Bench of the Apex Court while dealing with petition for condonation of delay of 1011 days, it has been found that on going through the averments in the application for condonation of delay, there is no C.M.Appl.No.01 of 2019 in R.S.A.No.477 of 2019 15 sufficient explanation for the period from 15.03.2017 till the second appeal was filed in the year 2021. Ultimately it was found that High Court is not at all justified in exercising its discretion to condone such a huge delay on 1011 days in preferring the second appeal and High Court has not exercised the discretion judiciously. It is also found that the reasoning found by the High Court in condoning the huge delay of 1011 days is not germane and accordingly the order condoning delay of the High Court was set aside.
19. In Basawaraj v. Special Land Acquisition Officer : 2013 (3) KLT Online 1108 (SC) while dealing with Section 5 the meaning of the word 'sufficient cause' under Section 5 of the Limitation Act, 1963 has been dealt with and paragraph No.9 of the said decision is relevant in this context.
"9.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 C.M.Appl.No.01 of 2019 in R.S.A.No.477 of 2019 16 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 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; C.M.Appl.No.01 of 2019 in R.S.A.No.477 of 2019 17 Parimal v.Veena @ Bharti AIR 2011 SC 1150; and Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai AIR 2012 SC 1629.) "
20. In Seyd Alavi v. Abdul Hameed : 2022(3) KLT 656, a Division Bench of this Court while dealing with Section 5 of the Limitation Act, 1963 it has been held that when sufficient cause is shown the court is bound to exercise its discretion to render justice by condoning the delay and the court should take into account the culpable negligence on the party and in such cases the discretion to be exercised in the negative . In that case, the delay caused was only 22 days and hence holding that disposal of matters on merits is the statutory sanction and the courts would be liberal in condoning delay, in cases, where "sufficient cause" is established. When the delay is for a short period, the discretion should be exercised more liberally without insisting for explanation for each day's delay.
21. Coming to the fact situation of this case, admittedly, there is delay of 1047 days in filing the second appeal. It is also to be noted that the first appeal filed by the C.M.Appl.No.01 of 2019 in R.S.A.No.477 of 2019 18 appellants/petitioners was also with a petition to condone the delay of about 5 years and finding that there is no sufficient cause to condone the huge delay caused, the learned Subordinate Judge dismissed the delay condonation petition and consequently the appeal was also dismissed. Even after the dismissal of that petition and appeal again second appeal has been filed with a delay of 1047 days. But the question is whether there is sufficient cause to condone the delay of 1047 days? Along with the application, a supporting affidavit was filed by the second respondent narrating the reasons for the delay with respect to the period after passing the order dismissing the appeal by the first appellate court. The delay condonation petition and appeal were dismissed by the Sub Court, Kottarakkara on 29.02.2016. Intimation of disposal has been received from the Additional Government Pleader, Kottarakkara on 22.08.2016 and it was reported on 28.09.2016 to District Collector first respondent sent the case files to the District Labour Officer for legal opinion. In the additional affidavit filed, it is C.M.Appl.No.01 of 2019 in R.S.A.No.477 of 2019 19 further alleged that before obtaining legal opinion from the District Law Officer, the respondent/plaintiff filed representation before the Governor of Kerala to give appropriate direction from the Tahsildar to effect mutation with respect to a portion of property gifted to his daughter and a report accordingly was submitted to the Governor on 22.11.2017. Further, it is explained that from 2017 onwards, they were engaged in the rehabilitation activities of the victims of Okhi Cyclone Disaster in the coastal areas of Kollam District and hence it was not possible to get assistance regarding the files from the officials till 23.05.2018. It is further alleged that the delay of 186 days from 23.05.2018 to 23.11.2018 occurred in the A.G's office for preparation of second appeal. Thereafter information was received seeking for certified copy even though the certified copy was already obtained. Hence fresh application for certified copy was filed on 13.03.2019 and it was received on 30.03.2019 and appeal was filed on 12.04.2019. So, from the affidavit filed by the second respondent it could be seen that there is nothing to infer that the respondents acted in a negligent manner or there was want of bona fide in view of the various reasons C.M.Appl.No.01 of 2019 in R.S.A.No.477 of 2019 20 stated in the affidavit and the additional affidavit. Okhi Cyclone Disaster occurred in coastal areas of Kollam District is a fact which the court can take judicial notice. So, naturally revenue officials would be paying more attention for doing the rehabilitation works in connection with the Okhi Cyclone Disaster. However, it cannot be ignored that a long delay of 1047 days has been caused in filing the appeal. There are some reasons offered explaining the delay. But it cannot be found that appellants could establish sufficient cause for long delay of 1047 days in filing the appeal. However, the records would show that first appellate court also dismissed the appeal on dismissal of an application for condonation of delay. So taking into account the totality of facts and circumstances I am of the considered view that delay can be condoned on condition that appellants/petitioners would pay cost of Rs.5,000/- (Rupees five thousand only) to the respondent/plaintiff within one month from the date.
Post after one month. For compliance post on 19.07.2022.
(sd/-) M.R.ANITHA, JUDGE jsr/16/06/22 17-06-2022 /True Copy/ Assistant Registrar