Kerala High Court

Saifudheen vs Bhargavi Amma on 3 January, 2024

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
            THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
     WEDNESDAY, THE 3RD DAY OF JANUARY 2024/13TH POUSHA, 1945
                          RSA NO. 715 OF 2023
AGAINST THE DECREE AND JUDGMENT DATED 29.03.2006 IN   AS 55/1998 OF
            ADDITIONAL DISTRICT COURT (ADHOC), MANJERI
 DECREE AND JUDGMENT DATED 02.03.1991 IN OS 98/1988 OF SUB COURT,
                                MANJERI
APPELLANTS/APPELLANTS 1, 2, 4 AND 6/LEGAL HEIRS OF 5TH DEFENDANT:

    1     SAIFUDHEEN
          AGED 55 YEARS
          S/O. CHALARATH PUTHUKKUDI ABDUL HAMEED,
          RESIDING AT DEEMA COTTAGE,
          KUTHUKAL ROAD, MANJERI AMSOM DESOM,
          ERANAD TALUK, PIN- 673122

    2     SHAFEER
          AGED 54 YEARS
          S/O. CHALARATH PUTHUKKUDI ABDUL HAMEED,
          DEEMA COTTAGE, KUTHUKAL ROAD,
          MANJERI AMSOM DESOM, ERANAD TALUK, PIN - 676122

    3     SHANEEL
          AGED 44 YEARS
          S/O. CHALARATH PUTHUKKUDI ABDUL HAMEED,
          RESIDING AT DEEMA COTTAGE, KUTHUKAL ROAD,
          MANJERI AMSOM DESOM, ERANAD TALUK, PIN - 673122

    4     SARU @ SAROO
          AGED 72 YEARS
          W/O. CHALARATH PUTHUKKUDI ABDUL HAMEED,
          RESIDING AT DEEMA COTTAGE, KUTHUKAL ROAD,
          MANJERI AMSOM DESOM, ERANAD TALUK, PIN - 673122

          BY ADVS.
          V.V.SURENDRAN
          P.A.HARISH
          SANIKA.V.S.
 C.M.Appl.No.1 of 2023
& RSA NO. 715 OF 2023
                           2


RESPONDENTS/RESPONDENTS AND APPELLANTS 3 AND 5 /

PLAINTIFF AND DEFENDANTS 1 TO 4, 6 AND 7/LEGAL HEIRS OF DECEASED RESPONDENTS AND DEFENDANTS:

1 BHARGAVI AMMA AGED 82 YEARS D/O. KARUTHEDATH KAINIKKARA MEENAKSHI AMMA, PAYYANAD AMSOM DESOM AND POST, ERANAD TALUK,PIN - 676122 2 MEENAKSHI AMMA D/O. SREEDEVI AMA, ELAMKOOR AMSOM DESOM, ERANAD TALUK, MALAPPUAM- (DIED), PIN - 673633

3 CHANDRASEKHARAN S/O. MEENAKSHI AMMA, ELAMKOOR AMSOM DESOM, ERANAD TALUK, MALAPPUAM (DIED), PIN - 673633

4 RUKMINI AMMA AGED 81 YEARS W/O. KARUNAKARAN NAIR, VADAKKE KARAT HOUSE, MELAKAM, KARUVAMBRAM AMSOM, DESOM AND POST, ERANAD TALUK,, PIN - 676123

5 SIVASANKARAN AGED 73 YEARS S/O.MEENAKSHI AMMA, "RAGAM", MELAKAM, KARUVAMBRAM AMSOM DESOM AND POST, ERANAD TALUK,, PIN - 676123

6 VEERAN AGED 71 YEARS, S/O. VALLIYAMBALI MAMMAD, KIZHAKKEYIL, ELAMKUR AMSOM DESOM AND POST, CHERAMKUTY. (DIED), PIN - 676122

7 HAMZA S/O. ELAYADATH MUHAMMED, KONASSERI, ELAMKUR AMSOM DESOM AND POST, (DIED), PIN - 673122

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8 SAFILA AGED 51 YEARS D/O. CHALARATH PUTHUKKUDI ABDUL HAMEED, DEEMA COTTAGE, KUTHUKAL ROAD, MANJERI AMSOM DESOM, ERANAD TALUK,, PIN -

676122

9 MUHAMMED SHIJIL AGED 40 YEARS S/O. CHALARATH PUTHUKKUDI ABDUL HAMEED, RESIDING AT DEEMA COTTAGE, KUTHUKAL ROAD, MANJERI AMSOM DESOM, ERANAD TALUK, PIN - 673122

10 SOUDAMINI @ BABY AGED 74 YEARS W/O. CHANDRASEKHARAN, KIZHAKKEKAINIKKARA, ELAMKUR AMSOM, CHERAKUTH DESOM POST. ELANKUR,, PIN - 676122

11 SARALA AGED 53 YEARS W/O. GANGADHARAN, PALLIKUTH HOUSE, PAYYANAD AMSOM DESOM AND POST,, PIN - 676122

12 MEENAKSHIKUTTY AGED 55 YEARS W/O. MOHANAKRISHNAN, 'MADHAV', MUNDUPARAMBA, MALAPPURAM DESOM, CHENNATH ROAD, MALAPPURAM DISTRICT, PIN - 676509

13 SANKARANUNNI, AGED 53 YEARS KIZHAKKEKAINIKKARA HOUSE, ELANKUR AMSOM DESOM, AND POST, PIN - 676122

14 JALAJA @ AMMINI AGED 51 YEARS W/O. JAYASANKAR, NARUKARA AMSOM DESOM, AND POST,, PIN - 676123

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15 RAGINI @ SINDHU AGED 49 YEARS W/O. SURESHKUMAR, VENGARA AMSOM DESOM, AND POST, PIN - 676304

16 VANAJA @ BINDU AGED 47 YEARS W/O. HARI, KIZHAKKEKAINIKKARA HOUSE, ELANKUR AMSOM DESOM, CHERUKUTH, ELANKUR POST, PIN - 676122

17 NISHA @ INDHU AGED 45 YEARS W/O. SURESHKUMAR, MOOZHIKKAL VIPANCHIKA, MALAPPURAM AMSOM, MUNDUPARAMBA PO, PIN - 676509

18 SAINABA AGED 51 YEARS W/O. HAMZA, KONASSERI, ELAMKUR AMSOM DESOM, AND POST,, PIN - 676122

19 MUJEEB RAHMAN AGED 35 YEARS S/O. HAMZA, KONASSERI, ELAMKUR AMSOM DESOM, AND POST,, PIN - 676122

20 FOUSIYA AGED 34 YEARS D/O. HAMZA, KONASSERI, ELAMKUR AMSOM DESOM, AND POST,, PIN - 676122

21 NASEEMA AGED 32 YEARS D/O. HAMZA, KONASSERI, ELAMKUR AMSOM DESOM, AND POST, PIN - 676122

22 JAMSHEERA AGED 28 YEARS D/O. HAMZA, KONASSERI, ELAMKUR AMSOM DESOM, AND POST, PIN - 676122

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23 ARIFA AGED 26 YEARS D/O. HAMZA, KONASSERI, ELAMKUR AMSOM DESOM, AND POST, PIN - 676122

24 MUHAMMED S/O. LATE VEERAN, KIZHAKKEYIL, ELAMKUR AMSOM DESOM AND POST, CHERAMKUTH, PIN - 676122

25 UMMU HABEEBA D/O. LATE VEERAN, KIZHAKKEYIL, ELAMKUR AMSOM DESOM AND POST, CHERAMKUTH, PIN - 676122

26 FATHIMA, D/O. LATE VEERAN, KIZHAKKEYIL, ELAMKUR AMSOM DESOM AND POST, CHERAMKUTH, PIN - 676122

27 SALEENA D/O. LATE VEERAN, KIZHAKKEYIL, ELAMKUR AMSOM DESOM AND POST, CHERAMKUTH, PIN - 676122

28 RAMLATH, D/O. LATE VEERAN, KIZHAKKEYIL, ELAMKUR AMSOM DESOM AND POST, CHERAMKUTH, PIN - 676122

THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

& RSA NO. 715 OF 2023

ORDER/JUDGMENT Dated this the 3rd day of January, 2024

This regular second appeal has been filed under

Section 100 r/w Order XLII Rule 1 of the Code of Civil

Procedure, 1908 (hereinafter referred to as 'CPC' for short),

challenging dismissal of AS No.55/1998 and I.A.No.665/1998

on the files of the Additional District Court, Manjeri, dated

29.03.2006, which arose out of decree and judgment in OS

No.98/1988 on the files of the Sub Court, Manjeri, dated

02.03.1991. The appellants herein are the legal heirs of the

5th defendant.

2. Heard.

3. C.M.Appl.No.1/2023 is a petition filed along with

RSA No.715/2023 to condone delay of 5551 days in filing the

second appeal.

4. In the affidavit in support of this petition, the

reasons for the long delay are stated in paragraph Nos.3, 4

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and 5, which are as under:

"3) For want of proper legal advice from the concerned lawyer the appellants could not file the appeal much less a copy application. We were informed that there is further scope and will have to depend on the assurance of respondents who had assured their share in the property. While so the 1st respondent filed final decree application and got her share allotted as per final decree dated 22.03.1994 but not executed and got lapsed by afflux of time. The 1st respondent thereafter again filed a suit as O.S. 173/2012 for partition wherein the right of the Legal heirs of Abdul Hameed in respect of 1/5th share of Meenakshi Amma was admitted but the suit was dismissed on the ground of resjudicata. Thereafter ignoring the decree of partition and all the previous litigations, a partition deed has been executed between respondents 1 to 3 and legal heirs of Chandrasekharan as document No. 1154/2015. The executants not only ignored the contentions taken in the previous suits but also interpreted dismissal of O.S. No.173/2012 as dismissal of the claim of appellants in the property and they are excluded in the partition.

4) At that time the appellant were advised to file

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a suit in respect of their share or the right in the property and accordingly appellants filed a suit as O.S. No. 21/2016 before the Munsiff Court Manjeri for declaration and consequential relief in respect of the 1/5th right of Meenakshi Amma in the suit property, which was conceded by the parties in their pleadings in the earlier or previous litigations.

The respondents 1, 3 and 4 to 11 opposed the suit contending that it is barred by resjudicata. The suit is dismissed on the ground of resjudicata, without adjudicating the suit on it's merits. The appellants filed an appeal as A.S. No. 46/2020 before the District Court against the judgment and decree dated 12.02.2020 in the above suit. The appeal A.S. 46/2020 was also dismissed on the ground of resjudicata. The appellants have filed RSA 498/2023.

5) It is at that juncture it was advised that all the steps taken in the litigations were not appropriate. May be, the advice obtained was not proper or the facts understood by the parties may be wrong. The appellants could not get or got proper legal advice for mitigating their right over the suit property. It is also a fact that the appellants never expected the respondents to cheat them, in view of the

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admissions made by them in their pleading in the cases. There was no willful laches or negligence on the part of the appellants in taking appropriate appeals at the right time. The fact that there were so many cases in between all attended by the appellants indicates that they were diligent and not negligent in the matter but in a misguided path. Hence it is only just and proper in the interest of justice to condone the delay in filing the appeal lest the appellants will be put to serious hardship and the property will be lost forever for the technical reason of delay."

5. It is argued by the learned counsel for the

applicants/appellants that there are two other litigations and

wrong legal advice not to prefer appeal are the reasons for

the delay.

6. In paragraph No.2 of the petition, the total delay in

challenging the decree and judgment of the appellate court,

which was passed on 29.03.2006, is calculated as 6369 days

and out of the same, 715 days excluded during the period

covered by Covid-19.

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7. Insofar as condonation of delay is concerned,

though the learned counsel for the appellant reiterated the

contentions urged before the First Appellate Court, with a

view to get 5551 days delay condoned, on perusal of the

affidavit in support of the petition, it could be gathered that

'no sufficient reasons' stated to condone the long delay in

filing the appeal. In this context, it is apposite to extract

Section 5 of the Limitation Act, 1963 and the same is as

follows:

"5. Extension of prescribed period in certain cases Any appeal or any application, other than an application under any of the provisions or Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period."

8. It is true that "sufficient cause" is the decisive

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factor while condoning the delay. Though it has been settled

that liberal view should be taken while condoning delay, it is

equally settled that when the delay sought to be condoned on

account of any dilatory tactics without bonafides, with

deliberate inaction or negligence, such a concession also is

not possible. In this connection, the learned counsel for the

plaintiff placed the latest decision of the Apex Court in Majji

Sannemma alias Sanyasirao v. Reddy Sridevi and Others

reported in AIR 2022 SC 332, wherein the Apex Court

considered condonation of delay of 1011 days. In the said

judgment, the Apex Court relied on the decision in

P.Ramachandran v. State of Kerala and Anr. reported in

(1997) 7 SCC 556, wherein condonation of delay of 565 days

was refused and held in paragraph No.7 to 8 are as under:

"7. At this stage, a few decisions of this Court on delay in filing the appeal are referred to and considered as under:

7.1 In the case of Ramlal, Motilal and Chhotelal v.Rewa Coalfields Ltd. (AIR 1962 SC 361), it is

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observed and held as under:-

In construing s. 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree- holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree- holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chattappan, (1890) J.L.R. 13 Mad. 269, "s. 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the

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appellant."

7.2 In the case of P.K. Ramachandran v. State of Kerala and Anr. (AIR 1998 SC 2276), while refusing to condone the delay of 565 days, it is observed that in the absence of reasonable, satisfactory or even appropriate explanation for seeking condonation of delay, the same is not to be condoned lightly. It is further observed that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. It is further observed that while exercising discretion for condoning the delay, the court has to exercise discretion judiciously. 7.3 In the case of Pundlik Jalam Patil V. Executive Engineer [(2008) 17 SCC 448], it is observed as under:

"The laws of limitation are founded on public policy. Statutes of limitation are sometimes described as "statutes of peace". An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. The principle is based on the maxim "interest reipublicae ut sit finis litium", that is, the interest of the State requires that there should be end to litigation but at the same time laws of limitation are a means to ensure private justice suppressing fraud and perjury, quickening diligence and preventing oppression. The object for fixing timelimit for litigation is based on

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public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy".

7.4 In the case of Basawaraj and Anr V. Special Land Acquisition Officer (AIR 2014 SC 746), it is observed and held by this Court that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case. It is further observed that the expression "sufficient cause"

cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party. It is further observed that even though limitation may harshly affect rights of a party but it has to be applied with all its rigour when prescribed by statute. It is further observed that in case a party has acted with negligence, lack of bona fides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. It is observed that each application for condonation of delay has to be decided within the framework laid down by this Court. It is further observed that if courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to legislature.

7.5 In the case of Pundlik Jalam Patil (supra), it is

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observed by this Court that the court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The Courts help those who are vigilant and "do not slumber over their rights".

8. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and considering the averments in the application for condonation of delay, we are of the opinion that as such no explanation much less a sufficient or a satisfactory explanation had been offered by respondent Nos.1 and 2 herein - appellants before the High Court for condonation of huge delay of 1011 days in preferring the Second Appeal. The High Court is not at all justified in exercising its discretion to condone such a huge delay. The High Court has not exercised the discretion judiciously. The reasoning given by the High Court while condoning huge delay of 1011 days is germane. Therefore, the High Court has erred in condoning the huge delay of 1011 days in preferring the appeal by respondent Nos. 1 and 2 herein-original defendants. Impugned order passed by the High Court is unsustainable both, on law as

well as on facts."

9. On perusal of the affidavit in support of this

petition, no valid reasons could be found to condone a long

delay of 5551 days. Therefore, this petition must fail.

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Accordingly, C.M.Appl.No.1/2023 stands dismissed.

10. Consequently, RSA No.715/2023 also stands

dismissed as time barred.

All interlocutory applications pending in this regular

second appeal stand dismissed.

Registry shall inform this matter to the trial court as well

as the appellate court forthwith.