Dismissed

State of Kerala v. P.a.Saidalavi

Kerala HC12 Oct 2017RFA/274/2017

Case brief

AI extract

What is this about?

The High Court dismissed an application for condonation of a 955-day delay in filing a regular first appeal. The court held the delay was unreasonable, noting the appellants had already accepted the decree and deposited funds to satisfy it, making the appeal unjustified.

What did the court decide?

Condonation of a 955-day delay in filing the regular first appeal dismissed; Regular First Appeal No. 274 of 2017 dismissed on grounds of limitation.

State of Kerala Vs P.a.Saidalavi — Civil Procedure and Limitation | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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THURSDAY, THE 12TH DAY OF OCTOBER 2017/20TH ASWINA, 1939

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RFA.No. 274 of 2017 ()

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AGAINST THE JUDGMENT & DECREE IN OS 294/2011 of SUB COURT, OTTAPPALAM DATED 25-08-2014

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APPELLANTS/DEFENDANTS 1 TO 3:

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1. STATE OF KERALA REPRESENTED BY THE EXECUTIVE ENGINEER, M.I.DIVISION, PALAKKAD.

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2. ASSISTANT EXECUTIVE ENGINEER M.I.SUB DIVISION, SHORANUR, PALAKKAD.

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3. ASSISTANT ENGINEER

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M.I.SECTION, SHORANUR, PALAKKAD.

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BY GOVERNMENT PLEADER SRI.SUNIL KUMAR KURIAKOSE.

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RESPONDENT/PLAINTIFF & DEFENDANT NO.4:

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1. P.A.SAIDALAVI

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S/O.ALAVI, PARAMBIL HOUSE, KONDURKKARA, PATTAMBI, OTTAPPALAM.

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2. P.RAVI

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S/O.PARANGODAN, PUTHIYAPARAMBIL HOUSE, MANNANNUR, VANIYAMKULATH, OTTAPALAM.

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THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 12-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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VPV

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P.N.RAVINDRAN & DEVAN RAMACHANDRAN, JJ.

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=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=

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C.M.Appln.No.282 of 2017 & R.F.A.No.274 of 2017

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Dated this the 12^th day of October, 2017

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JUDGMENT

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Devan Ramachandran, J.

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This application has been filed on behalf of the appellants praying that the delay of 955 days in filing R.F.A.No.274 of 2017, on the files of this court be condoned.

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In support of the application to condone delay, an affidavit has been sworn to by the Assistant Engineer, Minor Irrigation Section, Shornur, wherein he avers that the suit was decreed on 25.8.2014 but that the copy application was applied only on 29.1.2015 with a delay of more than 129 days. He asserts that this was not purposeful but that it was because a legal opinion was sought, which was thereafter obtained by the Government, which opined that there is no scope for filing an appeal. This opinion, according to the deponent, was however, not accepted by the Government and that thus an application to obtain the certified copy of the judgment was made with the intention to file the appeal and that this had occasioned a delay of 129 days in doing so. According to the deponent, the certified copy was ready on 7.2.2015 and received on the same day.

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In the meanwhile, it appears that the plaintiff had filed E.P.No.145 of 2014 before the Sub Court, Ottappalam and faced with

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R.F.A.No.274 of 2017

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-:2:-

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such proceedings, the Chief Engineer requested the Government for allotment of funds and a consequential letter of credit was issued for an amount of Rs. 3,16,845/- which included 6% interest till that date. According to the deponent, after deducting the applicable TDS, an amount of Rs.3,12,160/- has been deposited before the court below in the form of a Demand Draft, which amount was withdrawn by the plaintiff as per the orders of the court below. According to him, the only dispute in the execution petition is with regard to about Rs.8,000/- based on the calculation of the plaintiff. He further says that on 8.7.2015 the file was again sent for legal opinion to the Advocate General's Office and that an opinion was received on 1.3.2016 to file an appeal before the District Court concerned.

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The delay did not end there. The I.A. continues to say that the matter was thereafter entrusted to the District Government Pleader, Palakkad and that he took sometime “to obtain depositions, documents marked and connected materials which were produced before the Trial Court” (sic). According to the deponent, it was on 12.4.2016 that an appeal was filed before the District Court numbered as A.S.No.94 of 2016 but which was returned by the said court, on account of consideration of pecuniary jurisdiction, to be filed before this court and he concedes that the appeal was returned on 23.11.2016. Instead of filing an appeal immediately before this court, according to him, there was a further delay because certain documents

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R.F.A.No.274 of 2017

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like the “copy of the deposition of the Advocate Commissioner, etc. were missing in the files.” He says that “appeal is now prepared and filing after the summer vacation 2017” (sic).

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When we went through this affidavit on 23.6.2017, we found that the assertions made in it lacked vigour and material particulars and we, therefore, directed the learned Government Pleader to ascertain from the appellants the date on which they received notice in E.P.No.145 of 2014, the date on which the said execution petition was posted and the date on which the sum of Rs.3,12,160/- was deposited in the execution court. We had also directed the learned Government Pleader to ascertain the reason why the said sum was deposited towards satisfaction of the decree and on whose instruction the said amount was deposited. This matter came up for our consideration again on 14.8.2017. It was then submitted before us by the learned Government Pleader that the appellants received notice in the execution petition on 12.1.2015 and that, thereafter, by Government Order dated 15.3.2016 the Government had accorded sanction to pay the decree debt for a sum of Rs.3,12,160/-, which was thus deposited in the execution court on 6.4.2017. However, he was unable to inform us with clarity as to why A.S.No.94 of 2006 was presented before the District Court on 12.4.2016 when the opinion available to the Government was to pay off the decree debt in the manner indicated above.

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R.F.A.No.274 of 2017

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-:4:-

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Notwithstanding this, we notice that this appeal was found not maintainable by the District Court and returned to be presented in this court on account of section 13 of the Civil Courts Act. However, in spite of the fact that the appeal was returned to the appellants for being presented before this court on 23.11.2016, this appeal was filed only on 8.6.2017, which is about more than six months thereafter. In such circumstances, we asked the appellants to file a further affidavit setting out the explanation for the above facts and to produce along with it a copy of the Government order dated 15.3.2016.

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Today when the matter was taken, the learned Government Pleader informs us that he has placed on record a copy of G.O(Rt) No.188/16/WRD dated 27.2.2016 along with a memo. We have examined this order and we see interestingly that in the said order the Government have concluded that there is no scope for filing an appeal against the decree of the court below. We infer that it is in such circumstances and after recording that there is no scope for an appeal that the Government had accorded sanction for payment of Rs.3,16,845/-, under a valid head of account, towards full satisfaction of the decree debt, for being deposited before the court below in O.S.No.294 of 2011. We also see from the said order that the Government have thought it fit to conduct an enquiry to establish responsibility on those officers who failed to produce necessary documentary evidence to successfully defend the case before the Sub

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R.F.A.No.274 of 2017

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Court, Ottappalam in O.S.No.294 of 2011 and to recover the loss sustained from the responsible officers. Thereafter by G.O.(Rt) No.2404/16/FIN dated 15.3.2016, the Government issued a letter of credit for an amount of Rs.3,16,845/- for deposit before the court below. Obviously, it was in such circumstances that the amount was deposited on 6.4.2017 and we have no reason to believe otherwise than that the Government had made this payment in full and final settlement of the decree debt itself.

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In the circumstances that we have detailed above, we fail to understand why the Government has now filed this appeal. Obviously in terms of the Government Order referred to above, the Government had accepted the decree and had even deposited the amount in settlement of the same. The affidavit in support of C.M.Appln.No.282 of 2017 also says that the only dispute now, even according to the appellants, is to an extent of Rs.8,000/- under the decree. We are not sure that the exercise of an appeal before this court would have been justified when the cause was so small and when it is only a part of the calculation and adjudication of the decree debt. Since the appellants have already conceded to the decree and paid off the same, they certainly are not justified in filing this appeal merely because, according to them, there is an amount of Rs.8,000/- in dispute. We do not think that it will be proper for this court to continue with the exercise of this appeal for such a small cause. We do not think that

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R.F.A.No.274 of 2017

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this appeal is legitimate nor do we see sufficient cause having been shown by the appellants in seeking to condone the delay of 955 days. We are guided in our view by the various binding precedents of the Honourable the Supreme Court of India and in particular the judgment in Office of the Chief Post Master General and Ors. v. Living Media India Ltd. and Anr. (AIR 2012 SC 1506) wherein the principles relating to condonation of delay has been detailed and High Courts and other appellate courts have been advised caution by the Supreme Court while dealing with such large delay and not to treat it in a casual manner. We see that the delay sought to be condoned in this case is fairly large and that the reasons furnished by the appellants for condonation of the same are completely unsatisfactory and without basis.

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In such circumstances, we are left with no other option but to dismiss C.M.Appln.No.282 of 2017.

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Consequently, R.F.A.No.274 of 2017 will also stand dismissed on the grounds of limitation.

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Sd/- P.N.RAVINDRAN JUDGE

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Sd/- DEVAN RAMACHANDRAN JUDGE

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/true copy/

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P.A. To Judge

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vpv

State of Kerala v. P.a.Saidalavi

Case brief

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State of Kerala v. P.a.Saidalavi

Case brief

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