Kerala High Court

Brahmathejomayam Vedavyasa ... vs Venugopalan 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.353 OF 2020

  AGAINST THE ORDER IN I.A.No.3491/2019 IN AS 176/2019
    DATED 27-02-2020 OF DISTRICT COURT, THRISSUR & THE
 CONSEQUENTIAL JUDGMENT DTD.27.2.2020 IN A.S.No.176/2019
                OF DISTRICT COURT, THRISSUR

         OS 552/2013 OF PRINCIPAL SUB COURT, THRISSUR
                        DTD.11.7.2019


APPELLANTS/APPELLANTS/PLAINTIFFS:

     1       BRAHMATHEJOMAYAM VEDAVYASA TRUST,
             REPRESENTED BY PRESENT TRUSTEE AND SECRETARY,
             JAWAHARLAL, AGED 57 YERSS,
             S/O.KADAVIL VEETTIL JAYATHILAKAN,
             CHITTILAPPILLY VILLAGE, DESOM,
             THRISSUR TALUK.

     2       BRAHMATHEJOMAYAM VEDAVYASA TRUST,
             REPRESENTED BY PRESENT TRUSTEE MANOJ,
             AGED 57 YEARS, S/O.CHIRUKANDATH ASOKAN,
             CHITTILAPPILLY VILLAGE, DESOM,
             THRISSUR TALUK.

             BY ADVS.
             SRI.LINDONS C.DAVIS
             SRI.K.R.ARUN KRISHNAN
             SMT.E.U.DHANYA
             SMT.SEEMA.P.P.
 R.S.A.No.353 of 2020


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RESPONDENTS/RESPONDENTS/DEFENDANTS:
      1     VENUGOPALAN,
            AGED 65 YEARS,
            S/O.C.G.BALAKRISHNAN,
            CHANDRAPPILLY MADAM, NAMA VILLAGE DESOM,
            KANAYANNUR TALUK, SANSKRIT COLLEGE ROAD,
            THRIPUNITHURA P.O, ERNAKULAM DISTRICT,
            PIN-682301.

       2      RADHAKRISHNAN,
              AGED ABOUT 63 YEARS, S/O.C.G.BALAKRISHNAN,
              CHANDRAPPILLY MADAM, NAMA VILLAGE DESOM,
              KANAYANNUR TALUK, SASKRIT COLLEGE ROAD,
              THRIPUNITHURA.P.O, ERNAKULAM DISTRICT,
              PIN-682301.

       3      KRISHNAKUMAR,
              AGED 60 YEARS,
              S/O.C.G.BALAKRISHNAN,
              CHANDRAPPILLY MADAM, NAMA VILLAGE DESOM,
              KANAYANNUR TLAUK, SANSKRIT COLLEGE ROAD,
              THRIPUNITHURA.P.O, ERNAKULAM DISTRICT,
              PIN-682301.

       4      MANIKANDAN,
              AGED 54 YEARS,
              PRINTER,
              S/O.NARAYANAN, DEVI NIVAS,
              PALLAPRAM VILLAGE DESOM,
              PONNANI TALUK, PIN-679324.

       5      RAJEEV,
              AGED 54 YEARS,
              AGRICULTURIST,
              S/O.MANDAMPULLY KANNAPPAN,
              NATTIKA VILLAGE, DESOM,
              CHAVAKKAD TALUK, PIN-686013.

            R1-3 BY ADV.SRI.R.RAMDAS
            R4-5 BY ADV. SRI.V.VISAL AJAYAN
     THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 28-01-2021, THE COURT ON 29-01-2021 DELIVERED THE
FOLLOWING:
 R.S.A.No.353 of 2020


                               ..3..




                          JUDGMENT

The appellants 1 and 2 are the present Secretary and

Trustee respectively of Brahmathejomayam Vedavyasa

Trust (hereinafter referred to as 'Trust'). The plaintiffs are

the appellants. They filed O.S.No.552/2013 before the

Principal Sub Court, Thrissur for declaration that the

properties exclusively belong to the Trust and also for

permanent prohibitory injunction restraining the

defendants/respondents from entering into the property

other than that of the capacity as the devotees of Amma

or claiming any right over the property as per sale deed

No.1473/1978 of Mundoor Sub Registrar's Office. The suit

was dismissed for the reason that even though the

plaintiffs were present, he was not ready to adduce

evidence. Therefore, the evidence of the plaintiffs was

closed and the suit was dismissed on merits instead of

dismissing for default. For some time the Trust was R.S.A.No.353 of 2020

..4..

defunct. While so, the respondents 1 to 3 made an

attempt to destroy the boundary and some of the

properties of the Trust. Hence, the respondents 4 and 5

filed O.S.No.100/1997 before the Munsiff's Court, Thrissur

stating that the said property is a public property. In

O.S.No.100/1997 a counter claim was raised in the

written statement for a declaration that the property is a

Trust property. The counter claim was dismissed stating

that valuation of counter claim exceeds pecuniary

jurisdiction of the Munsiff's Court. An appeal was filed as

A.S.No.322/2005 before the District Court, Thrissur which

was also dismissed. The appellants have preferred O.P.

(C)No.4187/2012 which was also dismissed by this Court

making it clear that the appellants can recourse to

appropriate remedies as provided by law. Therefore, the

appellants preferred O.S.No.552/2013 before the Principal

Sub Court, Thrissur for declaration that the properties are R.S.A.No.353 of 2020

..5..

owned by the Trust.

2. According to the appellants, O.S.No.552/2013

filed by the appellants and O.S.No.100/1997 of the

Munsiff's Court, Thrissur were transferred and listed for

joint trial on 17.6.2019.

3. On 17.6.2019, the appellants were not present.

The defendants 4 and 5 were set exparte. Accordingly, the

suit was dismissed with costs to the defendants.

Aggrieved by the dismissal of O.S.No.552/2013, the

appellants filed A.S.No.176/2019 along with

I.A.No.3491/2019 to condone the delay of 45 days. The

reasons stated in the affidavit in support of the application

were that the 1st petitioner was out of station in

connection with the employment and the 2 nd petitioner

was laid up. The learned District Judge dismissed the

above I.A. on the reason that the delay has not been

properly explained.

R.S.A.No.353 of 2020

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4. Heard the learned counsel for the appellants

and the learned counsel for 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 delay by attributing negligence on the part of the appellants and without taking liberal approach in condoning the delay of 45 days?

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

sufficient reasons were put forth in the application to

condone the delay. It is settled principle of law that

nobody would be allowed to enjoy the benefit of decree on

technical reasons, but, on the other hand, the issue has to R.S.A.No.353 of 2020

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be resolved on the basis of rival contentions between the

parties.

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.

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.

R.S.A.No.353 of 2020

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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."

8. Making a justice oriented approach from this

perspective, there was sufficient cause for condoning the

delay by the appellate court. However, the inconvenience

caused to the respondent can be compensated by way of

cost. The delay is only for a period of 45 days. R.S.A.No.353 of 2020

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9. In the result, the R.S.A. is allowed. The order in

I.A.No.3491/2019 in A.S.No.176/2019 and the

consequential judgment dated 27.2.2020 stand set aside

on deposit of Rs.5,000/- as cost before the first appellate

court within thirty days from the date of this judgment

and in case of failure to deposit the cost, the appeal will