In a second appeal regarding a specific performance suit dismissed for delay, the High Court dismissed the appeal in limine, finding no illegality in refusing to condone the delay and clarifying that dismissal does not bar pursuing subsequent applications.
Second appeal dismissed in limine as there was no merit to be considered.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
WEDNESDAY, THE 9TH DAY OF MARCH 2016/19TH PHALGUNA, 1937
RSA.No. 1225 of 2009
AS 106/2008 OF SUB COURT, PAYYANNUR DATED 07-09-2009 OS 166/1998 OF MUNSIFF COURT, THALIPARAMBA DATED 21-11-2001
APPELLANT(S)/APPELLANT:
PUTHUPARAMBIL RAJU, S/O.VASU, KARTHIKAPURAM, ALAKKODE AMSOM, ARANGOM DESOM, KANNUR DISTRICT.
BY ADV. SRI.SUNIL NAIR PALAKKAT
RESPONDENT(S)/RESPONDENT:
KACHIRAYIL JOSEPH, S/O.ANTHRAYOS, AGED ABOUT 36 YEARS, KARTHIKAPURAM, KANNUR DISTRICT.
BY ADV. SRI.V.A.SATHEESH
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 09-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
PJ
P.B.SURESH KUMAR, J.
R.S.A. No.1225 of 2009
Dated 9th March, 2016.
J U D G M E N T
The defendant in a suit for specific performance is in
appeal.
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seven years, the defendant filed an appeal challenging the decision of the trial court with an application to condone the delay of six years, eight months and twenty days in filing the appeal. The interlocutory application filed by the appellant seeking orders to condone the delay in filing the appeal was dismissed by the appellate court. Consequently, the appeal was also dismissed. Hence this second appeal.
defendant challenging the decision of the trial court was not decided on merits. Instead, the appeal was dismissed consequent on the decision taken by the appellate court on the application filed by the defendant seeking orders to condone the delay in filing the appeal. As such, the only point to be considered is as to whether the appellate court is justified in refusing to condone the delay in filing the appeal. I.A.No.1683 of 2008 is the application filed by the appellant in the appeal seeking orders to condone the delay in filing the appeal. The reason stated by the defendant in the affidavit filed in support
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3
of the said application was that he was laid up due to cardiac ailments from 2001 December onwards and that he came to know of the decision of the trial court only on 25.8.2008. The defendant has produced eight documents as Exts.A1 to A8 in support of the application. He also gave oral evidence. The appellate court found that the documents produced by the defendant to establish his case in the delay petition that he was suffering from cardiac ailments from 2001 December would only show that the defendant has undergone some treatments during 2007 and 2008. In other words, according to the appellate court, there is nothing on record to indicate that the defendant was suffering from any ailments from 2001 as stated by him in the affidavit. The appellate court also found that during the period from 2003 to 2007, the defendant, who was an accused in an Abkari case, was appearing regularly before the appellate court in connection with the said case. The appellate court further found that the case of the defendant that he was not aware of the disposal of the suit cannot also be believed as the counsel engaged by him for the conduct of the
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case resides very near to his residence. In the above circumstances, the appellate court took the view that sufficient cause has not been shown by the defendant to justify the long delay of six years, eight months and twenty days in filing the appeal. I do not find any illegality in the said decision taken by the appellate court. The second appeal, in the circumstances, is dismissed in limine .
in the course of his arguments that the balance sale consideration payable by the plaintiff to the defendant as per the terms of the agreement relied on by the plaintiff has not been paid by the plaintiff to him as directed by the trial court and as such, he filed an application seeking orders under Section 28 of the Specific Relief Act. According to the learned counsel, the disposal of this appeal would cause prejudice to him in the matter of pursuing the said application. I do not find any basis for the apprehension expressed by the learned counsel for the appellant. However, it is made clear that the dismissal of this second appeal will not preclude the defendant
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from pursuing the said application. All the interlocutory applications in the appeal are closed.
Sd/-
P.B.SURESH KUMAR, JUDGE.
tgs
(true copy)
3 issues framed by the court
Whether the High Court should intervene in the appellate court's refu
Whether the defendant shown sufficient cause to condone delay in
Whether dismissal of second appeal precludes defendant from pursuing application under Section 28 Specific Relief Act
1 provisions across 1 enactments
Puthupambil Raju
Kachirayil Joseph
P.B. Suresh Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
