Kerala High Court · 2024

KINAVAKKAL DESOM, KOTTAYAM MALABAR P.O., THALASSERY, KANNUR DISTRICT. MANGADAN SHAMEER, AGED 49 YEARS NADUKANDIYIL S/O. PURUSHOTHAMAN, KOTTAYAM AMSOM, KINAVAKKAL DESOM, KOTTAYAM MALABAR P.O., THALASSERY KANNUR DISTRICT. MANGADAN SHARATH, AGED 40 YEARS NADUKANDIYIL, KOTTAYAM AMSOM, KINAVAKKAL DESOM, KOTTAYAM MALABAR P.O., THALASSERY, KANNUR DISTRICT. BY ADV SRI.P.P.RAMACHANDRAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON

14.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.M.Appl No. 3 of 2019 & R.S.A No.496 of 2019 - 3 - ORDER IN CM.APPLN NO.3 OF 2019 & JUDGMENT IN RSA NO.496 OF 2019 The C.M.application is filed by the appellants herein to condone delay of 6574 days in filing second appeal.

2. One V.P.Purushothaman, aged 60, sworn affidavit in support of this petition explaining the reasons for the delay. V.P.Purushothaman, in fact, was aged 36 years at the time when Appeal Suit No. 77/1996 was filed and he is now aged 60 years. Averments in the paragraph 2 and 3 of the affidavit are the reasons canvassed for condonation of a long delay of 6574 days.

3. The other side resisted the condonation of delay on submitting that no sufficient reasons stated to condone delay of long delay of 6574 days and the reasons stated in the affidavit are quite insufficient to do the said exercise.

4. Going by the averments in the affidavit, judgment in AS No. 77/1996 was delivered on C.M.Appl No. 3 of 2019 & R.S.A No.496 of 2019 - 4 -

12.10.2004 and the appellants even applied for certified copy on 24.10.2018, i.e. after 14 years. No proper explanation is given as to why the appellants, who are 5 in numbers, failed even to apply for the certified copy for a period of 14 years. In fact, filing of a fresh suit as OS No. 5/2008 by the respondents (after four years from

22.10.2004) against the appellants and passing a decree thereof, alleged to be known to the appellants, at the time of execution of the said decree, are the reasons stated for condonation of long delay. The same are not sufficient reasons.

5. Insofar as condonation of delay is concerned, though the learned counsel for the appellants canvassed a liberal view so as to condone delay of 6574 days, 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, as already pointed out. In this context, it is apposite to extract Section 5 of the Limitation C.M.Appl No. 3 of 2019 & R.S.A No.496 of 2019 - 5 - 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.”

6. It is true that “sufficient cause” is the decisive 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 C.M.Appl No. 3 of 2019 & R.S.A No.496 of 2019 - 6 - 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 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 C.M.Appl No. 3 of 2019 & R.S.A No.496 of 2019 - 7 - 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 lightheartedly 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 appellant." C.M.Appl No. 3 of 2019 & R.S.A No.496 of 2019 - 8 -

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 C.M.Appl No. 3 of 2019 & R.S.A No.496 of 2019 - 9 - 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 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 C.M.Appl No. 3 of 2019 & R.S.A No.496 of 2019 - 10 - 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 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 C.M.Appl No. 3 of 2019 & R.S.A No.496 of 2019 - 11 - 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.”

7. On perusal of the affidavit in support of this petition, no valid reasons could be C.M.Appl No. 3 of 2019 & R.S.A No.496 of 2019 - 12 - found to condone a long delay of 6574 days. Therefore, this petition must fail. Accordingly, C.M.Appl.No.3/2023 stands dismissed.

8. Consequently, RSA No.496/2023 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. Sd/- A. BADHARUDEEN JUDGE SM