State Of Kerala vs Tomy Dominic
2023 Latest Caselaw 1917 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
             THE HONOURABLE MRS. JUSTICE M.R.ANITHA
  FRIDAY, THE 3RD DAY OF FEBRUARY 2023 / 14TH MAGHA, 1944
                       RSA NO.1000 OF 2012
    AGAINST THE JUDGMENT AS 136/2009 OF SUB COURT, PALA
         OS 146/2007 OF MUNSIF COURT, KANJIRAPPALLY
APPELLANTS/APPELLANTS 1 TO 3/DEFENDANTS 1 TO 3:

    1       STATE OF KERALA
            REPRESENTED DISTRICT COLLECTOR, KOTTAYAM
    2       TAHSILDAR
            TALUK OFFICE, KANJIRAPPALLY
    3       ASST.EXECUTIVE ENGINEER,
            NATIONAL HIGHWAY 220, KANJIRAPPALLY
            BY SHEEBA.G, GOVERNMENT PLEADER


RESPONDENTS/R1 & 4TH APPELLANT/PLAINTIFF & 4TH DEFENDANT:

    1       TOMY DOMINIC,
            S/O.DOMINIC, KARIKKATTUKUNNEL HOUSE, CHIRAKKADAVU
            VILLAGE, VADAKKUMBHAGOM MURI, KANJIRAPPALLY.P.O
            PIN 686 507.
    2       UNION OF INDIA
            REPRESENTED BY THE SECRETARY, MINISTRY OF
            SHIPPING, ROAD TRANSPORT AND HIGHWAYS NEW DELHI
            PIN 110014
            BY ADVS.
            SRI.T.KRISHNAN UNNI (SR.)for R1
            MANU S., DSG OF INDIA for R2
            SMT.MEENA.A for R1



     THIS    REGULAR   SECOND   APPEAL   HAVING   COME   UP   FOR
ADMISSION ON 20.01.2023, THE COURT ON 03.02.2023 DELIVERED
THE FOLLOWING:
 C.M.Appl.No.878 of 2012
in R.S.A.No.1000 of 2012            2
and R.S.A.No.1000 of 2012

                             M.R.ANITHA, J
                          ******************

C.M.Appl.No.878 of 2012 in R.S.A.No.1000 of 2012 and R.S.A.No.1000 of 2012

---------------------------------------------- Dated this the 3rd day of February, 2023

ORDER & JUDGMENT

C.M.Appl.No.878 of 2012 is filed by the appellant to

condone the delay of 411 days in filing R.S.A.No.1000 of 2012.

2. The Deputy Thahasildar, Taluk Office, Kanjirapilly filed

supporting affidavit contending that delay caused due to

administrative exigencies occurred in the office of the respondent

and there is no wilful laches in not filing the appeal in time.

Hence the petition.

3. First respondent/plaintiff filed counter affidavit

contenting that the reason stated for the delay is not sufficient to

condone the long delay. No cogent and acceptable explanations

have been offered.

4. Heard both sides.

C.M.Appl.No.878 of 2012

and R.S.A.No.1000 of 2012

5. Suit has been filed originally for perpetual injunction

and amended subsequently seeking declaration of title and

possession after filing written statement by the

appellants/defendants. The dispute is with regard to item No.2

property having an extent of 20 sq.meters in which south

western concrete pillar of the four storied building in plaint

schedule property is situated. When there was attempt on the

part of the defendants/appellants to trespass into plaint schedule

property and demolish the portion of building, the suit was filed.

6. Appellants/defendants filed written statement

contending that plaintiff included puramboke land in the plaint

schedule property and denying the right and possession of

plaintiff and predecessor over plaint item No.2 property. PW1

examined and Exts.A1 to A15, Exts.C1 to C2(a) were also

marked from the side of plaintiff. There was no evidence from

the side of appellants/defendants. The learned Munsiff on

evaluating facts, circumstances and evidence, decreed the suit,

as prayed for. Against which A.S.No.136/2009 was filed by

appellants/defendants with an application under Section 5 of C.M.Appl.No.878 of 2012

and R.S.A.No.1000 of 2012

Limitation Act to condone the delay of 266 days. By the

impugned judgment, the petition to condone the delay and

appeal stand dismissed. Aggrieved by the same, the above R.S.A

has been filed with the C.M.Application.

7. Hence the question for consideration is whether there

is 'sufficient cause' to condone the delay of 411 days in filing the

R.S.A.

8. In Esha Bhattacharjee v. Managing Committee of

Raghunathpur Nafar Academy : 2013 (4) KLT Suppl. 59

(SC) a two Judge Bench of the Apex Court discussed about the

approach to be adopted by courts while dealing with application

for condonation of delay under Section 5 of the Limitation Act,

1963. Paragraph No.13 of the said decision is relevant to be

quoted which reads thus:

"13. Recently in Maniben Devraj Shah v.

Municipal Corporation of Brihan Mumbai[19], the learned Judges referred to the pronouncement in Vedabai v. Shantaram Baburao Patil [20] wherein it has been opined that a distinction must be made between a case where the delay is inordinate and a case where the delay is of few days and whereas in C.M.Appl.No.878 of 2012

and R.S.A.No.1000 of 2012

the former case the consideration of prejudice to the other side will be a relevant factor, in the latter case no such consideration arises. Thereafter, the two-Judge Bench ruled thus: -

"23. What needs to be emphasized is that even though a liberal and justice-oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost.

24. What colour the expression "sufficient cause" would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay." Eventually, the Bench upon perusal of the application for condonation of delay C.M.Appl.No.878 of 2012

and R.S.A.No.1000 of 2012

and the affidavit on record came to hold that certain necessary facts were conspicuously silent and, accordingly, reversed the decision of the High Court which had condoned the delay of more than seven years."

9. Hence the duty is upon the court in each case to

determine whether there is sufficient cause offered by the

parties. Whether there is negligence or inaction on the side of

the party approaching the court in taking timely action has to be

ascertained from the factors brought in by them as explanation.

There is also distinction between cases where delay is inordinate

and cases where delay is of few days and in the former case, the

consideration of prejudice to the other side is a relevant factor

and if the delay is of the few days, the question of prejudice is

not of much relevance.

10. In Basawaraj v. Special Land Acquisition Officer :

2013 (3) KLT Online 1108 (SC) the meaning of the word

'sufficient cause' under Section 5 of the Limitation Act, 1963 has

been dealt with in detail and paragraph No.9 of the said decision

is relevant in this context to be extracted which reads thus: C.M.Appl.No.878 of 2012

and R.S.A.No.1000 of 2012

"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 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 C.M.Appl.No.878 of 2012

and R.S.A.No.1000 of 2012

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; Parimal v.Veena @ Bharti AIR 2011 SC 1150; and Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai AIR 2012 SC 1629.)

11. In University of Delhi v.

Union of India (UOI) and Ors. : MANU/SC/1761/2019 :

(2020) 13 SCC 745 while dealing with condonation of delay, it

has been held that a liberal approach is to be taken in the matter

of condonation of delay. That was a case in which respondent

No.13 was permitted by the Delhi Development Authority to

construct high rise multi-storied building in control zone of the

appellant. Permission was allowed for construction on plot. That

was leased out to Delhi Metro Rail Corporation by segregating

that plot. Appellant raised several contentions against the

construction and one of them was that construction was against

the master plan Delhi - 2021. Appellant challenged the action in

writ petition. Single Judge rejected the writ petition on the C.M.Appl.No.878 of 2012

and R.S.A.No.1000 of 2012

ground of delay and laches. Later, executive council of the

appellant recommended to file intra court appeal. Therefore,

Letters Patent Appeal happens to be filed with delay of 916 days

with petition to condone the delay. Division bench rejected the

application for condoning the delay without considering the

merits of the matter against which appellant approaches the

Apex Court. While disposing the matter, the Apex Court held that

by and large a liberal approach is to be taken in the matter of

condonation of delay. Consideration for condonation of delay

would not depend on the status of the party, namely the

Government or the public bodies so as to apply a different

yardstick, but the ultimate consideration should be to render

even handed justice to parties. Even in such cases, condonation

of delay should not be automatic since the accrued right or the

adverse consequence to the opposite party is also to be kept in

perspective. So in that background, while considering

condonation of delay, routine explanation should not be enough.

But it should be in the nature of indicating sufficient cause to

justify the delay which will depend on the backdrop of each case C.M.Appl.No.878 of 2012

and R.S.A.No.1000 of 2012

and will have to be weighed carefully by the courts based on the

fact situation. Merely because the appellant is a public body is

not a reasonable explanation for condonation of delay of 916

days and there should be reasonable explanations. When there is

such a long delay and there is no proper explanation, laches

would also come into play while noticing as to the manner in

which a party has proceeded before filing an appeal. The delay

offered in that case was two fold, i.e non availability of Vice

Chancellor due to retirement and subsequent appointment of new

Vice Chancellor, also that the matter was placed before the

executive council and a decision was taken to file the appeal and

the said process caused the delay. Evaluating the circumstances,

it was held that the decision of the Division Bench in dismissing

the LPA on the ground of delay of 916 days is justified and do not

call for interference.

12. In Poothadi Grama Panchayat v. S.C.Sukumaran :

2019 KHC 896 relied on by the counsel for respondents was a

writ appeal filed with 2106 days delay. Appellant is a Government

office and the reason offered for delay was missing of file and in C.M.Appl.No.878 of 2012

and R.S.A.No.1000 of 2012

the said circumstances, it was held that the reason offered to

condone the delay was not sufficient.

13. State of Kerala v. N.U.Poulose (Died) and

Others : 2019 KHC 882 was a case in which arbitration appeal

was filed with a delay of 1127 days. The reason stated in the

delay condonation application is that the judgment of the court

below was pronounced on 16.08.2016 and the application for

obtaining certified copy of the judgment and decree was filed on

30.10.2018. Stamp paper was called for on 08.11.2018 and copy

of the judgment and decree was obtained on 12.11.2018. In the

said circumstances, it was held that there is absolutely no reason

why the appellants did not file any application for obtaining

certified copy of the judgment between 16.08.2016 and

30.10.2018. There is delay of more than two years and finding

that the delay is not properly explained, the petition was

dismissed and consequently appeal also rejected.

14. In the present case, the only reason stated by the

Deputy Tahsildar in the affidavit attached to the petition to

condone the delay of 411 days in filing the above R.S.A is C.M.Appl.No.878 of 2012

and R.S.A.No.1000 of 2012

administrative exigencies in the office of the petitioners. It is

discernible from the affidavit that the judgment was pronounced

on 07.01.2011. But application for certified copy was filed on

31.05.2011. It is further alleged that certified copy of the

judgment was received on 04.08.2011. It was forwarded to the

office of the deponent on 10.08.2011 and it was sent to the office

of Advocate General on 21.10.2011 for examining the scope of

appeal. It is further alleged that then it is forwarded to the office

of Advocate General's office for preparing the appeal. That date

is not stated in the affidavit. The appeal has been filed only on

23.07.2012. So, there is no proper explanation for that delay

caused. In Esha Bhattacharjee the Apex Court had also guided

a principle that an application for condonation of delay should be

drafted with careful concern and not in a half hazard manner

harbouring the notion that the courts are required to condone

delay on the bedrock of the principle that adjudication of a lis on

merits is seminal to justice dispensation system. The fact that

the appellants are State and its officials is not a reason to apply a

different yardstick for condonation of delay. Apart from the C.M.Appl.No.878 of 2012

and R.S.A.No.1000 of 2012

routine explanation of the administrative exigencies, no

reasonable cause is forthcoming for condoning the delay of more

than one year in filing the appeal in view of the settled principles

of law above discussed. Hence it cannot be found that the

petitioners/appellants offered sufficient cause for entertaining the

petition for condoning the long delay of 411 days in filing the

appeal.

15. It is true that the learned Government Pleader brought

to my attention Mandal Revenue Officer v. Goundla

Venkaiah and Another : 2010 KHC 4011. That was a case in

which it has been alleged that the predecessor of the

respondents illegally occupied 5 acres of land which is classified

in the revenue records Kharizkhata - Sarkari and in 1965 and

1986 notices were issued under section 7 of Andra Pradesh Land

Encroachment Act, 1905 but no order has been passed for

eviction. In 1990, Mandal Revenue Officer filed application before

the Special Tribunal constituted under the Land Grabbing Act for

recovery of possession of 5 acres and the respondents contended

that they acquired title by adverse possession and also that they C.M.Appl.No.878 of 2012

and R.S.A.No.1000 of 2012

are landless poor entitled to assignment of land as per board's

standing orders. But the appellant initiated proceedings under

the Land Grabbing Act and the Special Tribunal allowed the

application and declared that the scheduled land is a Government

land and directed to handover possession to Government. The

appeal preferred by the respondents was dismissed by the

special court. The respondents took up the matter in writ petition

and a Division Bench of the High Court did not disturb the finding

of the Special Tribunal that the scheduled land is Government

land, but set aside the orders on the premise that respondents

have acquired title by adverse possession and they cannot be

evicted being treated as land grabbers. But the Apex court held

that dropping of proceeding under erstwhile Andhra Pradesh Land

Encroachment Act, 1905 did not lead to an inference that

respondents' possession was open and hostile against

Government. Payment of land revenue and making of application

to Government for assignment of schedule land or regularisation

of possession was negation of respondents' plea that they had

acquired title by adverse possession.

C.M.Appl.No.878 of 2012

and R.S.A.No.1000 of 2012

16. It appears that the argument advanced quoting

Mandal Revenue Officer by the learned Government Pleader, is

something concerning the merits of the matter, since the court

below declared title of plaintiff over item No.2 property by

adverse possession.

17. The property alleged to be encroached in this case by

the 1st respondent is plaint item No.2 which is 20 square meters

only and the portion of the building. So, the decision cited above

cannot be squarely made applicable in this case.

18. It is further to be noted that the above R.S.A has been

directed against the judgment and decree in A.S.No.136 of 2009

on the file of Sub court Pala which in turn arise out of judgment

and decree in O.S.No.146/2007. The appeal has been dismissed

consequent to dismissal of I.A.No.2032 of 2009 which was filed

under section 5 of the Limitation Act, to condone the delay of 266

days in filing the appeal. As per the impugned order, the reason

stated for the delay is that there was no proper information

regarding the suit and delay in collection of official records and

no other reason is stated in the affidavit for the delay of 266 C.M.Appl.No.878 of 2012

and R.S.A.No.1000 of 2012

days. The respondent/plaintiff, on the other hand, contended that

the original suit was contested one and the special officer was

also deputed for conducting the suit in the trial court. Finding

that the grounds stated are not available as per the records

produced by the appellants, it was held that there is no sufficient

ground to condone the delay and consequently, appeal was

dismissed following the principles in Pundlik J. Patil v.

Executive Engineer : 2009 1 KLT S.N 25 (C No. 26) SC. In

such circumstances, what is the scope of interference by this

Court while sitting in second appeal against the dismissal of the

appeal consequent to the dismissal of the petition to condone the

delay, is also relevant.

19. In K. Subbarayudu v. Special Deputy Collector

(Land Acquisition) : (2017) 12 SCC 840, a two Judge Bench

of the Apex Court had occasion to consider the scope of

interference when court concerned exercising its discretion either

condoning or declining to condone the delay and it has been held

that normally superior court will not interfere in exercise of such

discretion. It is also held that the true guide is whether the C.M.Appl.No.878 of 2012

and R.S.A.No.1000 of 2012

litigant has acted with due diligence. Here, first appellate court

while considering the petition to condone delay found that the

reason stated for condoning the delay is not seen available as per

records and hence petition to condone the delay has been

dismissed. Even after the dismissal of first appeal on the ground

of delay, the 2nd appeal has also been filed with delay of 411

days.

20. Absence of diligence and inaction are writ large on the

part of the petitioners. Mere fact that State and its officials are

the appellants by itself is not a reason to condone the delay. So,

I am of the considered view that petitioners/appellants failed to

offer sufficient reason to condone the delay.

In the result, petition to condone the delay and Regular

Second Appeal stand dismissed. In the facts and circumstances,

there is no order as to cost.

                               (sd/-)    M.R.ANITHA, JUDGE

jsr/

                   True Copy

                                    P.S to Judge