Adima vs State Of Kerala
2022 Latest Caselaw 1040 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT
                THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                                     &
                 THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
          Thursday, the 27th day of January 2022 / 7th Magha, 1943
                CM.APPL.NO.1/2021 IN LA.APP. NO. 225 OF 2021

                LAR 13/2012 OF THE SUB COURT, PERUMBAVOOR.

                                    ---

PETITIONERS/APPELLANTS:

1.ADIMA ,W/O.LATE KUNJAPPAN, MANAYAPPATTU HOUSE,

BRAHMAPURAM P.O.,PUTHENCRUZ VILLAGE,ERNAKULAM,

NOW RESIDING AT MANAYAPPAT HOUSE,NAIR COLONY,

KARIMUGAL,PUTHENCRUZ P.O.,ERNAKULAM,PIN -682 308.

2.SIVAN,S/O.LATE KUNJAPPAN, MANAYAPPAT HOUSE,

BRAHAMAPURAM P.O., PUTHENCRUZ VILLAGE, ERNAKULAM,

NOW RESIDING AT MANAYAPPAT HOUSE,PINARMUNDA,

PERINGALA P.O.,ERNAKULAM, PIN - 683 565.

3.SANTHA, D/O.LATE KUNJAPPAN, MANAYAPPAT HOUSE,

BRAHAMAPURAM P.O.,PUTHENCRUZ VILLAGE,ERNAKULAM,

NOW RESIDING AT KUNNATHUPARAMBIL HOUSE,PUTHENCRUZ P.O.,

KARIMUGAL,ERNAKULAM,PIN -682 308.

4.OMANA,D/O.LATE KUNJAPPAN, MANAYAPPAT HOUSE,

BRAHAMAPURAM P.O.,PUTHENCRUZ VILLAGE,ERNAKULAM,

NOW RESIDING AT MUTTATHAYYATHU HOUSE,PANKKAPADY,

KANINADU P.O.,ERNAKULAM,PIN - 682 310.

                                                                     P.T.O.
 5.RAJAN S/O.LATE KUNJAPPAN, MANAYAPPAT HOUSE,

BRAHAMAPURAM P.O.,PUTHENCRUZ VILLAGE,ERNAKULAM,

NOW RESIDING AT MANAYAPPAT PUTHENCRUZ P.O.,

NAIR COLONY, KARIMUGAL,ERNAKULAM,PIN - 682 308.

6.VENU S/O.LATE KUNJAPPAN,MANAYAPPAT HOUSE,

BRAHMAPURAM P.O.,PUTHENCRUZ VILLAGE,ERNAKULAM,

NOW RESIDING AT MANAYAPPAT HOUSE,QUARTER NO.501/7,

FACT-CD TOWNSHIP,AMBALAMEDU P.O.,ERNAKULAM, PIN -682 303.

7.SUBRAHMANIAN,S/O.LATE KUNJAPPAN, MANAYAPPAT HOUSE,

BRAHMAPURAM P.O., PUTHENCRUZ VILLAGE, ERNAKULAM,

NOW RESIDING AT MANAYAPPAT HOUSE, QUARTER NO.509/4,

FACT-CD TOWNSHIP,AMBALAMEDU P.O.,ERNAKULAM, PIN -682 303.

RESPONDENTS/RESPONDENTS:

1.STATE OF KERALA,REPRESENTED BY DISTRICT COLLECTOR,

ERNAKULAM, PIN - 682 030.

2.THE KOCHI CORPORATION, PARK AVENUE, ERNAKULAM,

REPRESENTED BY ITS SECRETARY - 682 011.


     Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to condone the delay
of 1610 (one thousand six hundred and ten) days in filing the above
appeal, in the interest of justice.


     This Application coming on for orders upon perusing the application
and the affidavit filed in support thereof, and upon hearing the arguments
of M/S. VARGHESE K.PAUL, PETER KURIAN, TERESA AMMU & LAKSHMI P.S.,
Advocates for the petitioners and of GOVERNMENT PLEADER for the respondent
no.1, the court passed the following:


                                                                    P.T.O.
 ANNEXURE A1:THE ORIGINAL DISCHARGE SUMMARY OF ADIMA,

ISSUED BY DR.JOHN MENACHERY, DEPARTMENT OF GASTROENTEROLOGY,

RAJAGIRI HOSPITAL, CHUNANGAMVELY, ALUVA, DATED 08.06.2018.

ANNEXURE A2:THE ORIGINAL SCAN REPORT OF ADIMA,ISSUED BY

DR.TEENA SLEEBA,CONSTULTANT RADIOLOGY,RAJAGIRI HOSPITAL,

CHUNANGAMVELY,ALUVA,DATED 22.06.2016.

                             ---
        ANIL K. NARENDRAN & P.G. AJITHKUMAR, JJ.
    -----------------------------------------------------------
     C.M.Appl.No.1 of 2021 in L.A.A.No.225 of 2021
                                 &
     C.M.Appl.No.1 of 2021 in L.A.A.No.241 of 2021
    -----------------------------------------------------------
          Dated this the 27th day of January, 2022

                            ORDER

Ajithkumar, J.

The applicants/appellants in both these applications/

appeals are common. The respective Land Acquisition Appeals

were filed challenging the judgment of the Sub Court,

Perumbavoor dated 18.12.2014 in L.A.R.Nos.13 of 2012 and

129 of 2011. There is a delay of 1610 days in filing

L.A.A.No.225 of 2021 and 1783 days in filing L.A.A.No.241 of

2021.

2. Common are the reasons stated for the delay. The

1st petitioner is the mother and petitioners 2 to 7 are her

children. The 1st petitioner has been suffering from Left

Thalamic Infraction (CVA) and has been under treatment since

2014. Her 17 year old grand-daughter, who is the daughter of

the 5th petitioner, Sri.Rajan, fell ill on 10.12.2015 and while

undergoing treatment as an inpatient, she succumbed to the

disease on 18.12.2015. Sri.Rajan and his wife could not get

C.M.Appl.No.1 of 2021 in L.A.A.No.225 of 2021 & C.M.Appl.No.1 of 2021 in L.A.A.No.241 of 2021

over the shock owing to the death of their daughter and

consequent trauma. They gradually became patients of

hypertension distress and several other diseases. In January

2015, wife of the 2 nd petitioner fell ill and had to be under

treatment in the Medical College Hospital, Kalamassery. The

treatment continued for months together, until her committing

suicide on 04.04.2015. Her suicide resulted the 2 nd petitioner

also falling ill and to be under continuous treatment. He

ultimately was diagnosed with tuberculosis. Meanwhile,

husband of the 4th petitioner, Sri.T.Rajan, developed acute

chest pain and on 13.02.2019 he was diagnosed with acute

coronary disease, requiring continuous treatment. He

however, soon died. As a result of such relentless tragic

incidents, the entire family has been devastated and put to

financial crunch.

3. In the above circumstances, none of the petitioners

has been in a position to enquire about the possibility of filing

appeals. However, during February 2019, they came to know

about the appeals filed by the claimants in similar land

C.M.Appl.No.1 of 2021 in L.A.A.No.225 of 2021 & C.M.Appl.No.1 of 2021 in L.A.A.No.241 of 2021

acquisition proceedings. The petitioners, therefore,

approached a counsel, but to their dismay, the cost of filing

the appeals, including payment of court fees was much above

their capacity. The advice was to restrict their claim in order

to reduce the court fees. Pointing out those reasons, the

petitioners filed these applications requesting to condone the

delay.

4. A counter affidavit was filed on behalf of

respondents 1 and 2. It is contended that the delay is

inordinate and the reasons stated for the condonation of the

delay is quite insufficient. It is also contended that the

documents produced by the petitioners do not substantiate

the reasons stated by them. Accordingly, the respondents

seek to dismiss the applications.

5. The petitioners filed I.A.No.1 of 2021 in

L.A.A.No.225 of 2021 seeking to receive two documents,

which are records of treatment of the 1st petitioner.

6. Having heard both sides, I.A.No.1 of 2021 is

allowed and the documents received on file as Annexures A1

C.M.Appl.No.1 of 2021 in L.A.A.No.225 of 2021 & C.M.Appl.No.1 of 2021 in L.A.A.No.241 of 2021

and A2 for the purpose of referring in the C.M.Applications.

7. In Collector, Land Acquisition v. Katiji [(1987)

2 SCC 107] in the context of Section 5 of the Limitation Act,

1963, the Apex Court held that, the expression 'sufficient

cause' employed by the Legislature is adequately elastic to

enable the Courts to apply the law in a meaningful manner,

which subserves the ends of justice, that being the life-

purpose for the existence of the institution of Courts.

8. In Esha Bhattacharjee v. Managing Commitee

of Raghunathpur Nafar Academy and others [(2013) 12

SCC 649] the Apex Court while summerising the principles

applicable while dealing with an application for condonation of

delay held that, the concept of liberal approach has to

encapsulate the conception of reasonableness and it cannot

be allowed a totally unfettered free play. The Apex Court held

further that, there is a distinction between inordinate delay

and a delay of short duration or few days, for to the former

doctrine of prejudice is attracted whereas to the latter it may

not be attracted. That apart, the first one warrants a strict

C.M.Appl.No.1 of 2021 in L.A.A.No.225 of 2021 & C.M.Appl.No.1 of 2021 in L.A.A.No.241 of 2021

approach whereas the second calls for a liberal delineation.

Paragraph 21 of the judgment reads thus;

"21. From the aforesaid authorities the principles that can broadly be culled out are:

21.1 There should be a liberal, pragmatic, justice- oriented, non-pedantic approach while dealing with an application for condonation of delay, for the Courts are not supposed to legalise injustice but are obliged to remove injustice.

21.2 The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose, regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

21.2 Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

21.4 No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. 21.5 Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.6 It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

C.M.Appl.No.1 of 2021 in L.A.A.No.225 of 2021 & C.M.Appl.No.1 of 2021 in L.A.A.No.241 of 2021

21.7 The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

21.8 There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

21.9 The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

21.10 If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. 21.11 It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. 21.12 The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

C.M.Appl.No.1 of 2021 in L.A.A.No.225 of 2021 & C.M.Appl.No.1 of 2021 in L.A.A.No.241 of 2021

21.13 The State or a public body or an entity representing a collective cause should be given some acceptable latitude.'

9. This Court in Rafeek and another v. K.

Kamarudeen and another [2021 (4) KHC 34] observed

that,

'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 : 1987 KHC 911] 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 : 2013 KHC 4725].'

10. After adverting to the above principles, this Court

in Rafeek (supra) held that it is well settled that the Law of

Limitation is founded on public policy to ensure that the

parties to a litigation do not resort to dilatory tactics and seek

legal remedy without delay. In an application filed under

Section 5 of the Limitation Act, the Court has to condone the

delay if sufficient cause is shown.

C.M.Appl.No.1 of 2021 in L.A.A.No.225 of 2021 & C.M.Appl.No.1 of 2021 in L.A.A.No.241 of 2021

11. The facts averred in the affidavits reveal the series

of misfortune afflicted the petitioners and the members of

their family starting from 2014. The impugned judgment was

passed on 18.12.2014. Soon, one or other mishaps started

haunting the petitioners and members of their family.

Annexures A1 and A2 would show that the 1 st petitioner has

been under treatment continuously. There is no reason to

disbelieve the assertions regarding deaths that occurred in the

family. If such misfortunes happened in a family, one cannot

expect that ignoring such tragic incidents they would come

forward and pursue the litigations they have been involved.

There is every justification for the petitioners for not to

enquire about the possibility of filing the appeals. Therefore, it

has to be said that there was sufficient explanation for the

delay. However, having considered the fact that there are

seven petitioners and no one has come forward to enquire

about these cases, it may not be appropriate to condone the

delay with an advantage of their getting interest on the

enhanced amount of award, if any, during the period of delay.

C.M.Appl.No.1 of 2021 in L.A.A.No.225 of 2021 & C.M.Appl.No.1 of 2021 in L.A.A.No.241 of 2021

12. In the above circumstances, we hold that the

C.M.Applications are liable to be allowed on the condition that

the petitioners would not be entitled to get interest on the

enhanced amount of award, if any, during the period of delay,

ie., for 1610 days in L.A.A.No.225 of 2021 and 1783 days in

L.A.A.No.241 of 2021. The C.M.Applications are allowed

accordingly.

Sd/-

ANIL K. NARENDRAN, JUDGE

Sd/-

P.G. AJITHKUMAR, JUDGE

dkr

27-01-2022 /True Copy/ Assistant Registrar