Kerala High Court
The Assistant Engineer vs V.Mukundan Menon on 11 June, 2025
2025:KER:40906
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 11TH DAY OF JUNE 2025 / 21ST JYAISHTA, 1947
RSA NO. 381 OF 2024
AGAINST THE JUDGMENT AND DECREE DATED 21.08.2004 IN AS NO.78
OF 2003 OF I ADDITIONAL SUB COURT, THRISSUR
ARISING OUT OF THE JUDGMENT AND DECREE DATED 23.03.2000 IN OS
NO.2745 OF 1998 OF III ADDITIONAL MUNSIFF COURT ,THRISSUR
APPELLANT(S)/RESPONDENTS 1 AND 2/DEFENDANTS 1 & 2:
1 THE ASSISTANT ENGINEER
PWD BUILDING DIVISION, CIVIL STATION,
AYYANTHOLE, THRISSUR., PIN - 680003
2 THE DISTRICT COLLECTOR
THRISSUR, P.O.AYYANTHOLE,
THRISSUR., PIN - 680003
BY ADV
GOVERNMENT PLEADER
RESPONDENT(S)/APPELLANT & RESPONDENTS 3 & 4/PLAINTIFF & DEFENDANTS
3 & 4:
1 V.MUKUNDAN MENON
AGED 65 YEARS
S/O. VALLATH MEENAKSHI AMMA,
RADHI VIHAR, P.O., AYYANTHOLE, THRISSUR
2 RADHIKA SUKUMARAN
AGED 31 YEARS, RADHI VIHAR, AYYANTHOLE,
THRISSUR, NOW RESIDING AT P.B.NO.19818, SHARJA U.AE
3 B.SUKUMARAN
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AGED 39 YEARS
S/O. BALAKRISHNAN NAIR,
SHARJAH, U.A.E.
R2, R3 BY ADVS.
SMT.P.RANI DIOTHIMA
SMT.P.V.RADHAMANI
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ORDERS ON
29.05.2025, THE COURT ON 11.06.2025, DELIVERED THE
FOLLOWING:
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EASWARAN S., J.
-----------------------------
in
and
------------------------------
Dated this the 11th day of June, 2025
JUDGMENT/ORDER
This C.M. Application has been preferred with a prayer to
condone the delay of 7050 days in preferring the appeal.
2. Before considering the application, it is pertinent to mention that
the suit for a permanent prohibitory injunction was filed by the plaintiff and
numbered as OS No.2745/1998, which was dismissed by judgment and
decree dated 23.03.2000. Aggrieved by the judgment and decree dismissing
the appeal, the plaintiff preferred AS No.78/2003, before the Sub Court,
Thrissur, and by judgment dated 21.08.2004, the appeal was allowed and the
suit was decreed. The point of dispute involved in the present suit is
regarding the entitlement of the appellant State to make constructions over
plaint 'B' schedule property lying in the eastern side of the plaint 'A'
schedule property and make alterations in the lie of the plaint schedule
property. The judgment and decree passed by the Appellate Court stood the
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test of time for nearly 18 years, and that, after a gap of 16 years, an execution
petition was filed by the plaintiff since there was a deliberate attempt to flout
the decree. It is at the said time that the present appeal is preferred.
3. The prime consideration of this Court in this application is
whether the affidavit discloses a sufficient cause for condonation of delay.
Before delving into the principles governing the condonation of delay and
what constitutes a sufficient cause, it is worthwhile to mention the crux of the
averments in the affidavit accompanying the application for condonation of
delay. In paragraph 7 of the affidavit, it is admitted that by the judgment
date 21.08.2004, the suit was decreed. But the main reason stated by the
appellant is that the 'Tahsilar' was not impleaded in the suit, and therefore,
the passing of the judgment and decree by the Appellate Court was not made
known to them. According to the appellant, since the right of easement is
claimed over the plaint 'B' schedule property, the 'Tahsildar' and 'Village
Officer' are necessary parties to the suit. The entire records relating to the
case were maintained with the 'Tahsildar' and 'Village Officer', and
therefore the appellants were not in a position to ascertain the real facts.
4. Still further in paragraph 10, it is clearly admitted that the
execution petition was filed during August 2021. It is further stated that only
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after getting a copy of the execution petition, the Assistant Engineer enquired
about the proceedings in OS No.2745/1998 and found that, as against the
judgment decree of the First Appellate Court, the State had not preferred any
appeal. Since there was dereliction of duty on the part of the officers
concerned, the appellants sought an explanation from the 19 Assistant
Engineers, who worked in the respective stations from 2003 to 2020, and for
that, the communications in respect of the aforesaid fact have also been
produced. Immediately thereafter, on 22.04.2022, the Government Pleader
attached to the District Court was approached with the request for legal
opinion, and the same was forwarded to the District Collector and the
Assistant Engineer received it after receipt of the same, forwarded to the
District Collector on 06.06.2022. In the meantime, the facts were also sent
before the Government Pleader attached to the Advocate General's Office,
and the same was scrutinised, and found that there is scope for preferring the
appeal. It is also submitted that there was no cause of action for the plaintiff
to prefer the suit as well as the appeal.
5. From the records of proceedings, this Court in its order dated
13.11.2024 had directed the State to file an additional affidavit explaining the
delay. Accordingly, an additional affidavit has also been filed in November
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2024 itself. The District Collector had forwarded judgment and decree to the
Executive Engineer, PWD division. But in the same breath, it is asserted that
the District Authorities came to know that there was no appeal preferred
against the judgment only when the execution proceedings were preferred.
The reading of the entire text of the affidavit in support of the condonation of
delay shows that the appellant is still asserting the fact that he did not know
about the filing of the appeal before the Sub Court, Thrissur.
6. A counter affidavit has been filed on behalf of the
respondents/plaintiff, wherein the prayer for condonation of delay is
seriously opposed. It is submitted that since the decree was flouted after 16
years, the plaintiff was constrained to file an execution petition wherein the
Advocate Commissioner was appointed, and he reported that constructions
were affected by the appellants violating the judgment and decree.
Therefore, it is contended that the delay has not been properly explained.
7. I have considered the rival submissions raised across the bar.
8. The prime consideration of this Court would be, whether the
appellants were aware about the judgment and decree dated 21.08.2004 of
the 1st Additional Sub Court, Thrissur. The reading of the judgment of the
Appellate Court shows that the appellants herein were represented before the
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District Court by the Government Pleader. As stated above, the entire thrust
of the argument is built upon the fact that the appellants did not know about
the passing of the judgment and decree by the First Appellate Court. In
support of the aforesaid contention, the main reason stated is that the
'Tahsildar' and the 'Village Officer' were not impleaded in the suit so as to
effectively the defend the case against the plaintiff. The fallacy in the
aforesaid argument stems merely out of the ignorance of the fact that before
the Trial Court, there was no such plea taken. On the contrary, the written
statement was filed on behalf of the 1 st and 2nd appellants/defendants 1 and 2,
stating that the defendants had never caused obstruction or plaint 'B'
schedule property. The plea that the plaintiffs do have a way over 'B'
schedule property is also wrong. I have referred to the above observations
from the judgment of the Trial Court only to reiterate the fact that the District
Collector, who is the 2nd appellant, had no case, before the Trial Court as well
as before the First Appellate Court that the 'Tahsildar' and 'Village Officers'
were necessary parties, and in their absence, the consideration of the suit
cannot proceed. The fact remains that the 'Tahsildar' and the 'Village
Officers' are officers under the 2nd Appellant District Collector, and
therefore, the 2nd appellant was well within his jurisdiction to call for the
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records from the custody of the 'Tahsildar' and the 'Village Officer' in order
to protect the interest of the State, if it was being adversely affected. What
steps did the District Collector take in this regard is not stated.
9. Still further, the appellant in the first affidavit as well as the
additional affidavit had not taken care to explain the delay from 2004 to
2020, except by a way of an assertion that they did not know about the
judgment and decree of the First Appellate Court. Such a callous approach
in filing an application for condonation of delay cannot be appreciated by
this Court.
10. In the above back drop, there are sufficient reasons as to why
this Court should nonsuit the appellants on the ground of inordinate delay.
Admittedly, in the first affidavit accompanying the delay petition, it is
specifically admitted that during August 2021, the appellants were aware
about the filing of the execution petition. Nowhere in the application has the
delay between August 2021 and July 2024, when this appeal is presented,
been explained. It is pertinent to mention that the callous nature of the
appellants is evident from the fact that apart from the filing delay, there is a
representation delay of 100 days. Therefore, even if this Court were to
assume that the representation delay was liable to be condoned, the fact
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remains that the delay of 7050 days preferring the appeal is not properly
explained.
11. It is now trait law that the principles governing the law of
limitation are founded on public policy. The limitation Act has been enacted
with an object of not destroying the rights of the parties but to ensure that
they approach the court for an indication of their rights without unreasonable
delay. The expression "Sufficient Cause" used in Section 5 of the limitation
act and other statutes is elastic in effect to enable the courts to apply the law
in a meaningful manner which serves the ends of justice. No hard and fast
truth has been or can be laid for deciding the applications for condonation of
delay. But over the years the courts have always advocated a liberal
approach to be adopted in the manners so that substantive rights of the
parties are not defeated because of the delay.
12. The expression "Sufficient Cause" would depend upon the facts
of a given case. It would largely depend upon the ability of the party seeking
condonation of delay to explain the reason for the delay. The Supreme Court
has consistently reminded us that the length of the delay is not what matters,
but the manner in which the delay is explained by the party seeking
condonation. In cases involving States and agencies and instrumentalities,
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the courts have always tended to take a liberal approach by taking note of the
fact that the sufficient time is taken in the decision making process. But in a
given case, if there is a total lack of bonafides and a lethargy or a sheer
negligence on the part of the State or its instrumentalities, the court cannot
grant a premium to the derivation shot by the officers of the State, and the
application for condonation of delay cannot be allowed as a matter of course.
The courts have always been faced with a situation where the State comes
and pleads before the court that the bar of limitation will cause injury to the
public interest.
13. In Maniben Devraj Shah v. Municipal Corporation Brihan
mumbai [2012 (5) SCC 157], the Supreme Court held that a distinction must
be made between a case where the delay is inordinate and the case where the
delay is only a few days, and whereas in the former case, the consideration of
prejudice to the other side will be a relevant fact that in the latter case, no
such consideration arises.
14. In University of Delhi Vs. Union of India and Others, [(2020)
13 SCC 745], the Supreme Court held that even though every day is delay
need not be explained but a reasonable and acceptable explanation is very
much necessary. The court cannot ignore the accrued right of the opposite
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party, and the same cannot be dealt with in a light manner. In Post Master
General and Ors. v. Living Media India Ltd. and Anr., [2012 (3) SCC 563],
the Supreme Court reiterated the fact that the law of limitation binds
everybody equally, including the government, and the defence by the
government of impersonal machinery and inherited bureaucratic
methodology cannot be accepted in view of the modern technology that is
available.
15. A Division Bench of this Court in Abdul Khader v. Rapheal T.
George [2023 (4) KLT 276], held that though the litigant cannot approach
the court, and they can plead that a liberal approach should be adopted.
Though adopting a liberal approach in condoning the delay is one of the
guiding principles, but such a liberal approach cannot be equated with a
licence to approach the court at will, regarding the time limit fixed by the
relevant statute. The acts of negligence or inaction on the part of a litigant do
not constitute sufficient cause for condonation of delay.
16. The Supreme Court in Sheo Raj Singh (Deceased) Through
Legal Representative and Ors. v. Union of India and Anr., [(2023) 10 SCC
531], held that the length of delay is not what matters but a reasonable
explanation. It may be further held that the rigour of the requirement to
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provide a reasonable explanation cannot be done away with merely because
the appellant is a State.
17. The courts are always flooded with the pleas of the State or its
instrumentalities in the matter of filing appeals, which inordinate delay with
an application for condonation of delay. In all these cases, the usual stand
taken by the State is that, these officers were negligent and did not protect
the interests of the State. In the pr2025:KER:40906esent case also, the
same stand is reflected in the affidavit accompanying the application for
condonation of delay. But surprisingly, there is not even a remote attempt to
explain what steps were taken after the judgment was pronounced by the
First Appellate Court. Except by producing a few communications seeking
an explanation from the officials who had handled the issues from 2003 to
2020, no further evidence is placed before this Court to actually establish that
erring officials were punished by the State appropriately.
18. Voicing, some concerns about some of the facts which have
presented itself before this Court, this Court is constrained to hold that there
is sheer laxity on the part of the State, in preferring the application to
condone delay of 7050 days. Therefore, this Court is left with no alternative
but to decline the request of the State for condonation of delay.
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Accordingly, CM Application No. 2/2024 is dismissed, and
consequently, the appeal also fails, and accordingly, the same is dismissed.
Sd/-
EASWARAN S.
JUDGE
HKH/11.06.2025
