Kerala High Court
State Of Kerala vs Shahul Hameed Rawather on 17 June, 2022
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
******************
C.M.Appl.No.01 of 2019
in
R.S.A.No.477 of 2019
----------------------------------------------
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
