Kerala High Court
Chellappan vs George @ Jiji on 29 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
FRIDAY, THE 29TH DAY OF JANUARY 2021 / 9TH MAGHA, 1942
RSA.No.366 OF 2020
AGAINST THE ORDER DTD.08.02.2016 IN IA 410/2015 IN
UNNUMBERED A.S.... OF SUB COURT, KATTAPPANA
OS 103/2007 DATED 19-07-2014 OF MUNSIFF'S COURT,
PEERMADE
APPELLANT/APPELLANT/DEFENDANT:
CHELLAPPAN,
AGED 83 YEARS,
S/O.PADMANABHAN,
PAKKUKANDATHIL HOUSE,
PALLIKKUNNU KARA,
ELAPPARA VILLAGE, PEERMADE.
BY ADV. SRI.S.SACHITHANANDA PAI
RESPONDENT/RESPONDENT/PLAINTIFF:
GEORGE @ JIJI,
AGED 47 YEARS,
S/O.ELBY,
PARAYIL HOUSE,
PALLIKKUNNU KARA,
ELAPPARA VILLAGE, PEERMADE TALUK,
IDUKKI DISTRICT - 685 508.
BY ADV. SRI.MATHEW JOHN
BY ADV. SRI.MATHEW DEVASSI
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 22-01-2021, THE COURT ON 29-01-2021 DELIVERED THE
FOLLOWING:
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JUDGMENT
The defendant is the appellant. The
plaintiff/respondent filed the suit for permanent
prohibitory injunction restraining the defendant from
trespassing into the plaint schedule property and
committing any act of waste therein. The trial court
decreed the suit. The parties are hereinafter referred to as
the plaintiff and defendant according to their status in the
trial court unless otherwise stated.
2. The defendant filed a suit before the very same
court against the plaintiff and his wife for recovery of
possession of 10.5 cents of property on the strength of
title. The said suit was also decreed by the trial court. The
plaint schedule property in the decree of recovery of
possession includes the decree schedule in the injunction
suit. The plaintiff filed an appeal against the decree of
recovery of possession before the first appellate court and
R.S.A.No.366 of 2020
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the same is pending. The appeal filed by the defendant
challenging the decree of injunction was with a petition to
condone the delay of 276 days in filing the appeal. The
first appellate court dismissed the petition to condone the
delay in filing the appeal and consequently the appeal was
also dismissed.
3. This R.S.A. was filed with C.M.Application
No.1/2020 to condone the delay of 1363 days in filing the
appeal. This Court by order dated 17.11.2020 condoned
the delay of 1363 days in filing the appeal.
4. This R.S.A. is admitted on the following
questions of law:-
1. Whether the first appellate court is
wrong in dismissing the application to
condone the delay in the light of the
peculiar facts and circumstances of the
case?
2. In the light of the contradictory decrees
R.S.A.No.366 of 2020
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passed by the trial court and one of the
appeals against the decree is admitted
and is pending consideration, whether
the first appellate court is justified in
dismissing the petition to condone the
delay in filing one of the appeals?
5. Heard the learned counsel for the appellant
Sri.Sachithananda Pai and Sri.Mathew John, learned
counsel for the respondent.
6. It is a fact that this Court condoned the delay of
1363 days in filing the R.S.A before this Court on payment
of Rs.5,000/- to the learned counsel appearing for the
respondent before this Court within a period of two weeks
by the order dated 17.11.2020. So far as the A.S. before
the first appellate court was concerned, the appeal was
presented with a petition to condone the delay of 276
days in filing the appeal. The first appellate court failed to
appreciate the fact that the appellant was aged 83 years
R.S.A.No.366 of 2020
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and is undergoing treatment for cardiac, diabetes and
blood pressure. Sufficient reason to condone the delay has
been made out in the application filed by the defendant
before the first appellate court to condone the delay. The
dismissal of the petition to condone the delay by the first
appellate court cannot be justified. Considering the facts
and circumstances of this case particularly when a
contradictory decree passed by the trial court and one of
the appeals against the decree is admitted, it would have
been proper for the appellate court to condone the delay
in filing one of the appeals in the interest of justice.
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.
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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.
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.
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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."
8. Making a justice oriented approach from this
perspective, there was sufficient cause for condoning the
delay in the institution of the appeal. When this Court has
condoned the delay of 1363 days in preferring the R.S.A.
on 17.11.2020, there is no justifiable reason to disallow
the application for condonation of delay filed before the
first appellate court. Since an amount of Rs.5,000/- has
already been paid by the appellant as cost to the
respondent, no further cost is imposed in this appeal.
I.A.No.410/2015 in unnumbered A.S. stands allowed. The
delay in filing the appeal is condoned.
In the result, the R.S.A is allowed. The order in
I.A.No.410/2015 in unnumbered A.S. dated 08.02.2016
and consequential rejection of the appeal by the first
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appellate court stand set aside. The first appellate court is
directed to number the appeal in accordance with rules.
The first appellate court will now dispose of the appeal on
merits after affording a reasonable opportunity of hearing
to both sides. There will be no order as to costs. Pending
applications, if any, stand disposed of.
Sd/-
N.ANIL KUMAR,
JUDGE
skj
