Kerala High Court
Kaithandy Thazhe Subaida vs P.M. Hameed on 23 October, 2024
RSA NO. 552 OF 2024
1
2024:KER:79635
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
WEDNESDAY, THE 23RD DAY OF OCTOBER 2024 / 1ST KARTHIKA, 1946
RSA NO. 552 OF 2024
AGAINST THE ORDER DATED 05.10.2024 IN I.A.NO.1 OF 2024 IN AS
NO.120 OF 2024 OF ADDITIONAL DISTRICT COURT-III, KOZHIKODE
ARISING OUT OF THE JUDGMENT DATED 23.08.2017 IN OS NO.11 OF 2015 OF SUB
COURT, VADAKARA
APPELLANT/1ST DEFENDANT IN O.S.NO.11/2015 AND THE APPELLANT IN
A.S.NO.120/2024:
KAITHANDY THAZHE SUBAIDA
AGED 51 YEARS
OORALUNGAL AMSOM DESOM, APPELLANT MADAPPALLY COLLEGE P.O,
VATAKARA TALUK, KOZHIKODE, PIN - 673102
BY ADVS.
MAJID MUHAMMED K.
ANANDU R.
RESPONDENTS/PLAINTIFF & SUPPL.DEFENDANT/RESPONDENTS:
1 P.M. HAMEED
AGED 49 YEARS
'PILLAPALLY HOUSE', THRIKKAKKARA VILLAGE, KANAYANNOOR TALUK,
NORTH KALAMASSERY POST, NHLAKAM KARA, ERNAKULAM DISTRICT,
PIN - 683104
RSA NO. 552 OF 2024
2
2024:KER:79635
2 P.V.P. HANEEFA
AGED 61 YEARS
'BYTHUL SUNNATHIL' THAZHE THODUVAYAL PARAMBA, CHORODE
VILLAGE, ERAPURAM DESOM, CHORODE POST, VATAKARA TALUK
KOZHIKODE, PIN - 673106
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
23.10.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA NO. 552 OF 2024
3
2024:KER:79635
JUDGMENT
1. The first defendant in a suit for specific performance is the
appellant herein. The suit was decreed directing repayment of
the advance amount of Rs.9 lakh, which is paid as per Ext.A1
Agreement for sale with interest at the rate of 6% per annum
from the date of the Agreement till realization with costs.
2. The first defendant filed A.S.No.120/2024 before the First
Appellate Court with I.A.No.1/2024 to condone delay of 2487
days. I.A.No.1/2024 was dismissed. Consequently, the Appeal
was also dismissed. The first defendant is challenging the
judgment of the First Appellate Court, taking grounds against
the order in I.A.No.1/2024 refusing to condone the delay.
3. I heard the learned counsel for the appellant.
4. The learned counsel for the appellant argued that the appellant
was under the mistaken impression that the challenge against
the judgment of the Trial Court is pending consideration before
this Court in Original Petition (Civil) No.2858/2018 filed by the
second defendant and hence she need not file an appeal against
the Trial Court judgment before the disposal of the said O.P.(C).
RSA NO. 552 OF 2024
2024:KER:79635
The First Appellate Court ought to have condoned the delay on
medical grounds as the appellant had produced Medical
Certificate to prove her physical disability on health reasons.
The learned counsel further contended that, on merits, the
judgment of the Trial Court is unsustainable since the appellant
has specifically denied the execution of Ext.A1 agreement in
the Written Statement and the respondent/plaintiff did not take
any step to prove Ext.A1 before the Trial Court.
5. I find that the delay in filing the appeal before the First
Appellate Court is an inordinate one. The long delay of 2487
days could not be condoned on a casual explanation given by
the appellant. O.P.(C) No.2858/2018 is filed by the second
defendant against an order dismissing an Execution
Application. It is not against the judgment and decree of the
Trial Court. When the judgment and decree of the Trial Court
are not challenged by the second defendant, the appellant
could not have any reason to believe that she needed to file
an appeal only after the disposal of O.P.(C)No.2858/2018. The
appellant produced a Medical Certificate showing that she has
RSA NO. 552 OF 2024
2024:KER:79635
been suffering from severe back pain for the past several years.
It only says that the appellant was under treatment for disc
problems since October 2017.The said Certificate is also not
proved through the person who has issued the same. No
treatment records were produced. It does not in any way
indicate that the appellant was prevented from filing an appeal
within the time on account of health reasons. If the appellant
had genuine reasons for the delay, she should have produced
documents to prove the same, especially when the delay is
inordinate.
6. On the merits of the matter also, even though the Ext.A1
document was produced by the plaintiff along with the plaint,
the 1st defendant filed a Written Statement plainly denying the
execution of Ext.A1. She did not specifically deny her
signatures in Ext.A1. On the other hand, she has stated that An
agreement is seen produced in which her brother Abdul Salam
has also signed as a witness. When Ext.A1 document is
produced along with the plaint, she ought to have either denied
the signatures in Ext.A1 or should have made a sufficient
RSA NO. 552 OF 2024
2024:KER:79635
explanation as to how the signatures happened in Ext.A1. The
same was not done. Even assuming that the signature in Ext.A1
is denied in the Written Statement, then it was also the duty of
the first defendant to mount the box to make her available for
cross examination in order to prove that she has not executed
or signed Ext.A1. Such an attempt was also not made by the
first defendant. Even though the first defendant contended that
there is no transaction between the first defendant and the
plaintiff and the transaction is with the brother of the plaintiff,
the said contention was also not proved before the Trial Court.
If the real transaction was with the brother of the first
defendant, the first defendant ought to have examined her
brother - Abdul Salam, to prove the said contention. That was
also not done.
7. In view of the above-said discussion, I do not find any reason to
entertain this appeal. No substantial question of law arises in
the matter Accordingly, the Regular Second Appeal is
dismissed.
Sd/-
M.A.ABDUL HAKHIM
shg /XX JUDGE
