Kerala High Court

Roshan P Jacob vs Sathayan on 9 April, 2021

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

          THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943

                      RSA.No.189 OF 2021

AGAINST THE ORDER/JUDGMENT IN AS 7/2019 DATED 09-11-2020
       OF ADDITIONAL DISTRICT COURT-I,MAVELIKKARA

 AGAINST THE ORDER/JUDGMENT IN OS 391/2015 DATED 31-01-
             2018 OF MUNSIFF COURT,HARIPAD


APPELLANTS:

     1        ROSHAN P JACOB
              S/O. P.J. JACOB, CHIRAYIL PADEETTATHIL,
              PUTHUKUNDAM MURI, KARTHIKAPPALLY P.O,
              KARTHIKAPPALLY VILLAGE, KARTHIKAPPALLY TALUK,
              ALAPPUZHA DISTRICT, REPRESENTED BY POWER OF
              ATTORNEY HOLDER P.J. JACOB, AGED 73 YEARS,
              S/O. JOHN, CHIRAYIL PADICKAL, PUTHUKUNDAM
              MURI, KARTHIKAPPALLY VILLAGE, KARTHIKAPPALLY
              TALUK, ALAPPUZHA DISTRICT.

     2        JISHAMOL ROSHAN
              W/O. ROSHAN P JACOB, CHIRAYIL PADEETTATHIL,
              PUTHUKUNDAM MURI, KARTHIKAPPALLY P.O,
              KARTHIKAPPALLY VILLAGE, KARTHIKAPPALLY TALUK,
              ALAPPUZHA DISTRICT, REPRESENTED BY POWER OF
              ATTORNEY HOLDER P.J. JACOB, AGED 73 YEARS,
              S/O. JOHN, CHIRAYIL PADICKAL, PUTHUKUNDAM
              MURI, KARTHIKAPPALLY VILLAGE, KARTHIKAPPALLY
              TALUK, ALAPPUZHA DISTRICT.

     3        P.J. JACOB
              AGED 73 YEARS
              S/O. JOHN, CHIRAYIL PADICKAL, PUTHUKANDAM
              MURI, KARTHIKAPPALLY P.O, KARTHIKAPPALLY
              VILLAGE, KARTHIKAPPALLY TALUK, ALAPPUZHA
              DISTRICT.

              BY ADV. SRI.A.SHAFEEK (KAYAMKULAM)
 R.S.A.No. 189 of 2021


                             ..2..


RESPONDENTS:

       1      SATHAYAN,
              AGED 64 YEARS,
              S/O. KUTTESWARAN, AMBADIYIL, PUTHUKUNDAM MURI,
              KARTHIKAPPALLY P.O, KARTHIKAPPALLY VILLAGE,
              KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT -
              690516.

       2      OMANA
              AGED 58 YEARS
              W/O. SATHIYAN, AMBADIYIL PUTHUKUNDAM MURI,
              KARTHIKAPPALLY P.O, KARTHIKAPPALLY VILLAGE,
              KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT -
              690516.

       3      A.O. NINAN,
              AGED 83 YEARS,
              ERUMPUROTH, PUTHUKUNDAM MURI, KARTHIKAPPALLY
              VILLAGE, NOW RESIDING AT ERUMPUROTH, T.C.
              NO.8/2188, KUNNATHU MURI, MEDICAL COLLEGE P.O,
              CHERUVACKAL VILLAGE,
              THIRUVANANTHAPURAM - 695011.

              R3 BY ADV. SRI.JOSEPH GEORGE (KANNAMPUZHA)

     THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 31-03-2021, THE COURT ON 09-04-2021 DELIVERED THE
FOLLOWING:
 R.S.A.No. 189 of 2021


                                  ..3..


                             JUDGMENT

(Dated this the 9th day of April,2021)

The appellants in this second appeal are the

defendants 1 to 3 in O.S.No. 391/2015 on the file of the

Munsiff's Court, Haripad(hereinafter referred to as the 'trial

court') and the appellants in A.S.No.7/2019 on the file of the

Additional District Court-I, Mavelikkara (hereinafter referred to

as the 'first appellate court') and the respondents herein are

the plaintiffs and the fourth defendant before the trial court and

the respondents before the first appellate court. The parties

are hereinafter referred to as 'the plaintiffs' and 'the

defendants' according to their status in the trial court unless

otherwise stated.

2. The plaintiffs filed above suit for permanent

prohibitory injunction restraining the defendants 1 to 4 from

obstructing the peaceful enjoyment of plaint schedule item

No.3 pathway. By the judgment and decree dated 31.1.2018, R.S.A.No. 189 of 2021

..4..

the learned Munsiff passed a decree for permanent prohibitory

injunction restraining the defendants from obstructing the use

of plaint schedule item No.3 pathway. Challenging the

judgment and decree, defendants 1 to 3 preferred an appeal

before the first appellate court along with a petition to condone

the delay of 310 days in filing the appeal.

3. According to the appellants, the third defendant

was under the bona fide impression that the defendants 1 and

2, who were abroad, would come back and make arrangement

for filing the appeal. It is further stated that the third defendant

was under the belief that the first defendant had already made

some alternative arrangements to file the appeal. It is stated

that on 7.1.2019, the third defendant came to know that no

such arrangement was made by the first defendant. It is

further averred that the third defendant underwent a bypass

surgery and was taking rest for last ten months. Accordingly,

the appellants seek to condone the delay of 310 days in filing R.S.A.No. 189 of 2021

..5..

the appeal. However, the first appellate court dismissed the

application to condone the delay without going into the merits

of the appeal. Consequently, the appeal was also dismissed.

Hence, this second appeal.

4. Heard the learned counsel for the appellants and

the respondents.

5. This R.S.A. is admitted on the following

substantial question of law:-

Whether the first appellate court erred in dismissing the appeal without condoning the delay by attributing negligence on the part of the appellants and without taking liberal approach in condoning the delay.

6. The stand taken by the first appellate court is

that sufficient cause was not made out to condone the delay in

preferring the appeal. Going by the affidavit in support of the

application to condone the delay, it is clear that sufficient

reasons were put forth in the application. It is settled principle R.S.A.No. 189 of 2021

..6..

of law that nobody would be allowed to enjoy the benefit of a

decree on technical reasons, but, on the other hand, the issue

was to be resolved on the basis of the rival contentions

between the parties. It is true that there is a delay of 310 days

in preferring the appeal.

7. In Collector, Land Acquisition, Anantnag &

another v. Mst. Katiji & others [1987 KHC 911] the Apex

Court in paragraph 3 of the judgment adopted the following

principles in matters instituted with a petition for condoning the

delay:-

"1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

R.S.A.No. 189 of 2021

..7..

3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so." R.S.A.No. 189 of 2021

..8..

8. Making a justice oriented approach from the

above legal perspective, there was sufficient cause for

condoning the delay by the first appellate court. However, the

inconvenience caused to the respondents can be

compensated by way of cost.

In the result, the R.S.A. is allowed. The order on IA

No.25/2019 in A.S.No.7/2019 of the Additional District

Court-I, Mavelikkara and the consequent judgment and decree

dated 9.11.2020 stands set aside on deposit of Rs.5000/-

(Rupees Five Thousand only) as cost before the first appellate

court within two months from the date of receipt of a copy of