Dismissed
Saifudheen v. Bhargavi Amma
Kerala HCRSA/715/2023
Case brief
from the order text
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COURT OF KERALA AT ERNAKULAM PRESENT THE…
What the court decided
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 3RD DAY OF JANUARY 2024/13TH POUSHA, 1945
RSA NO. 715 OF 2023
AGAINST THE DECREE AND JUDGMENT DATED 29.03.2006 IN AS 55/1998 OF
ADDITIONAL DISTRICT COURT (ADHOC), MANJERI
DECREE AND JUDGMENT DATED 02.03.1991 IN OS 98/1988 OF SUB COURT,
MANJERI
APPELLANTS/APPELLANTS 1, 2, 4 AND 6/LEGAL HEIRS OF 5TH DEFENDANT:
1 SAIFUDHEEN AGED 55 YEARS S/O. CHALARATH PUTHUKKUDI ABDUL HAMEED, RESIDING AT DEEMA COTTAGE, KUTHUKAL ROAD, MANJERI AMSOM DESOM, ERANAD TALUK, PIN- 673122
2 SHAFEER AGED 54 YEARS S/O. CHALARATH PUTHUKKUDI ABDUL HAMEED, DEEMA COTTAGE, KUTHUKAL ROAD, MANJERI AMSOM DESOM, ERANAD TALUK, PIN - 676122
3 SHANEEL AGED 44 YEARS S/O. CHALARATH PUTHUKKUDI ABDUL HAMEED, RESIDING AT DEEMA COTTAGE, KUTHUKAL ROAD, MANJERI AMSOM DESOM, ERANAD TALUK, PIN - 673122
4 SARU @ SAROO AGED 72 YEARS W/O. CHALARATH PUTHUKKUDI ABDUL HAMEED, RESIDING AT DEEMA COTTAGE, KUTHUKAL ROAD, MANJERI AMSOM DESOM, ERANAD TALUK, PIN - 673122
BY ADVS. V.V.SURENDRAN P.A.HARISH SANIKA.V.S.
C.M.Appl.No.1 of 2023 & RSA NO. 715 OF 2023
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RESPONDENTS/RESPONDENTS AND APPELLANTS 3 AND 5 / PLAINTIFF AND DEFENDANTS 1 TO 4, 6 AND 7/LEGAL HEIRS OF DECEASED RESPONDENTS AND DEFENDANTS:
1 BHARGAVI AMMA AGED 82 YEARS D/O. KARUTHEDATH KAINIKKARA MEENAKSHI AMMA, PAYYANAD AMSOM DESOM AND POST, ERANAD TALUK,PIN – 676122
2 MEENAKSHI AMMA D/O. SREEDEVI AMA, ELAMKOOR AMSOM DESOM, ERANAD TALUK, MALAPPUAM- (DIED), PIN - 673633
3 CHANDRASEKHARAN S/O. MEENAKSHI AMMA, ELAMKOOR AMSOM DESOM, ERANAD TALUK, MALAPPUAM (DIED), PIN - 673633
AGED 81 YEARS W/O. KARUNAKARAN NAIR, VADAKKE KARAT HOUSE, MELAKAM, KARUVAMBRAM AMSOM, DESOM AND POST, ERANAD TALUK,, PIN - 676123
5 SIVASANKARAN AGED 73 YEARS S/O.MEENAKSHI AMMA, "RAGAM", MELAKAM, KARUVAMBRAM AMSOM DESOM AND POST, ERANAD TALUK,, PIN - 676123
6 VEERAN
AGED 71 YEARS, S/O. VALLIYAMBALI MAMMAD, KIZHAKKEYIL, ELAMKUR AMSOM DESOM AND POST, CHERAMKUTY. (DIED), PIN - 676122
7 HAMZA S/O. ELAYADATH MUHAMMED, KONASSERI, ELAMKUR AMSOM DESOM AND POST, (DIED), PIN - 673122
C.M.Appl.No.1 of 2023 & RSA NO. 715 OF 2023
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8 SAFILA AGED 51 YEARS D/O. CHALARATH PUTHUKKUDI ABDUL HAMEED, DEEMA COTTAGE, KUTHUKAL ROAD, MANJERI AMSOM DESOM, ERANAD TALUK,, PIN - 676122
9 MUHAMMED SHIJIL
AGED 40 YEARS S/O. CHALARATH PUTHUKKUDI ABDUL HAMEED, RESIDING AT DEEMA COTTAGE, KUTHUKAL ROAD, MANJERI AMSOM DESOM, ERANAD TALUK, PIN - 673122
10 SOUDAMINI @ BABY AGED 74 YEARS
W/O. CHANDRASEKHARAN, KIZHAKKEKAINIKKARA, ELAMKUR AMSOM, CHERAKUTH DESOM POST. ELANKUR,, PIN - 676122
11 SARALA AGED 53 YEARS W/O. GANGADHARAN, PALLIKUTH HOUSE, PAYYANAD AMSOM DESOM AND POST,, PIN - 676122
12 MEENAKSHIKUTTY
AGED 55 YEARS W/O. MOHANAKRISHNAN, 'MADHAV', MUNDUPARAMBA, MALAPPURAM DESOM, CHENNATH ROAD, MALAPPURAM DISTRICT, PIN - 676509
13 SANKARANUNNI, AGED 53 YEARS KIZHAKKEKAINIKKARA HOUSE, ELANKUR AMSOM DESOM, AND POST, PIN - 676122
14 JALAJA @ AMMINI AGED 51 YEARS W/O. JAYASANKAR, NARUKARA AMSOM DESOM, AND POST,, PIN - 676123
C.M.Appl.No.1 of 2023 & RSA NO. 715 OF 2023
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15 RAGINI @ SINDHU AGED 49 YEARS W/O. SURESHKUMAR, VENGARA AMSOM DESOM, AND POST, PIN - 676304
16 VANAJA @ BINDU AGED 47 YEARS W/O. HARI, KIZHAKKEKAINIKKARA HOUSE, ELANKUR AMSOM DESOM, CHERUKUTH, ELANKUR POST, PIN - 676122
17 NISHA @ INDHU AGED 45 YEARS W/O. SURESHKUMAR, MOOZHIKKAL VIPANCHIKA, MALAPPURAM AMSOM, MUNDUPARAMBA PO, PIN - 676509
18 SAINABA AGED 51 YEARS W/O. HAMZA, KONASSERI, ELAMKUR AMSOM DESOM, AND POST,, PIN - 676122
19 MUJEEB RAHMAN AGED 35 YEARS S/O. HAMZA, KONASSERI, ELAMKUR AMSOM DESOM, AND POST,, PIN - 676122
20 FOUSIYA AGED 34 YEARS D/O. HAMZA, KONASSERI, ELAMKUR AMSOM DESOM, AND POST,, PIN - 676122
21 NASEEMA AGED 32 YEARS D/O. HAMZA, KONASSERI, ELAMKUR AMSOM DESOM, AND POST, PIN - 676122
22 JAMSHEERA AGED 28 YEARS D/O. HAMZA, KONASSERI, ELAMKUR AMSOM DESOM, AND POST, PIN - 676122
C.M.Appl.No.1 of 2023 & RSA NO. 715 OF 2023
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23 ARIFA AGED 26 YEARS D/O. HAMZA, KONASSERI, ELAMKUR AMSOM DESOM, AND POST, PIN - 676122
24 MUHAMMED S/O. LATE VEERAN, KIZHAKKEYIL, ELAMKUR AMSOM DESOM AND POST, CHERAMKUTH, PIN - 676122 25 UMMU HABEEBA D/O. LATE VEERAN, KIZHAKKEYIL, ELAMKUR AMSOM DESOM AND POST, CHERAMKUTH, PIN - 676122 26 FATHIMA, D/O. LATE VEERAN, KIZHAKKEYIL, ELAMKUR AMSOM DESOM AND POST, CHERAMKUTH, PIN - 676122 27 SALEENA D/O. LATE VEERAN, KIZHAKKEYIL, ELAMKUR AMSOM DESOM AND POST, CHERAMKUTH, PIN - 676122 28 RAMLATH, D/O. LATE VEERAN, KIZHAKKEYIL, ELAMKUR AMSOM DESOM AND POST, CHERAMKUTH, PIN - 676122
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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C.M.Appl.No.1 of 2023 & RSA NO. 715 OF 2023
ORDER/JUDGMENT
Dated this the 3rd day of January, 2024
This regular second appeal has been filed under
Section 100 r/w Order XLII Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC' for short), challenging dismissal of AS No.55/1998 and I.A.No.665/1998 on the files of the Additional District Court, Manjeri, dated 29.03.2006, which arose out of decree and judgment in OS No.98/1988 on the files of the Sub Court, Manjeri, dated 02.03.1991. The appellants herein are the legal heirs of the 5th defendant.
RSA No.715/2023 to condone delay of 5551 days in filing the second appeal.
C.M.Appl.No.1 of 2023 & RSA NO. 715 OF 2023
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and 5, which are as under:
“3) For want of proper legal advice from the concerned lawyer the appellants could not file the appeal much less a copy application. We were informed that there is further scope and will have to depend on the assurance of respondents who had assured their share in the property. While so the 1st respondent filed final decree application and got her share allotted as per final decree dated 22.03.1994 but not executed and got lapsed by afflux of time. The 1st respondent thereafter again filed a suit as O.S. 173/2012 for partition wherein the right of the Legal heirs of Abdul Hameed in respect of 1/5th share of Meenakshi Amma was admitted but the suit was dismissed on the ground of resjudicata. Thereafter ignoring the decree of partition and all the previous litigations, a partition deed has been executed between respondents 1 to 3 and legal heirs of Chandrasekharan as document No. 1154/2015. The executants not only ignored the contentions taken in the previous suits but also interpreted dismissal of O.S. No.173/2012 as dismissal of the claim of appellants in the property and they are excluded in the partition.
4) At that time the appellant were advised to file
C.M.Appl.No.1 of 2023 & RSA NO. 715 OF 2023
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a suit in respect of their share or the right in the property and accordingly appellants filed a suit as O.S. No. 21/2016 before the Munsiff Court Manjeri for declaration and consequential relief in respect of the 1/5th right of Meenakshi Amma in the suit property, which was conceded by the parties in their pleadings in the earlier or previous litigations. The respondents 1, 3 and 4 to 11 opposed the suit contending that it is barred by resjudicata. The suit is dismissed on the ground of resjudicata, without adjudicating the suit on it's merits. The appellants filed an appeal as A.S. No. 46/2020 before the District Court against the judgment and decree dated 12.02.2020 in the above suit. The appeal A.S. 46/2020 was also dismissed on the ground of resjudicata. The appellants have filed RSA 498/2023.
5) It is at that juncture it was advised that all the steps taken in the litigations were not appropriate. May be, the advice obtained was not proper or the facts understood by the parties may be wrong. The appellants could not get or got proper legal advice for mitigating their right over the suit property. It is also a fact that the appellants never expected the respondents to cheat them, in view of the
C.M.Appl.No.1 of 2023 & RSA NO. 715 OF 2023
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admissions made by them in their pleading in the cases. There was no willful laches or negligence on the part of the appellants in taking appropriate appeals at the right time. The fact that there were so many cases in between all attended by the appellants indicates that they were diligent and not negligent in the matter but in a misguided path. Hence it is only just and proper in the interest of justice to condone the delay in filing the appeal lest the appellants will be put to serious hardship and the property will be lost forever for the technical reason of delay.”
and out of the same, 715 days excluded during the period covered by Covid-19.
C.M.Appl.No.1 of 2023 & RSA NO. 715 OF 2023
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“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.”
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C.M.Appl.No.1 of 2023 & RSA NO. 715 OF 2023
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 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:
C.M.Appl.No.1 of 2023 & RSA NO. 715 OF 2023
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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 decreeholder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decreeholder by lapse of time should not be light heartedly 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
C.M.Appl.No.1 of 2023 & RSA NO. 715 OF 2023
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appellant."
"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 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
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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 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.
C.M.Appl.No.1 of 2023 & RSA NO. 715 OF 2023
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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 their rights".
petition, no valid reasons could be found to condone a long delay of 5551 days. Therefore, this petition must fail.
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C.M.Appl.No.1 of 2023 & RSA NO. 715 OF 2023
Accordingly, C.M.Appl.No.1/2023 stands dismissed.
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
nkr
3 SHAIFUDHEEN A.G.), 9 APPALLY &SHEEN SHAFEER SHANNAE SARU RS@SAROO
1 BHARGAVI AMMA 2 MEENAKSHI AMMA 3 CHANDRASEKHARAN 4 RUKMINI AMMA
8 SAFILA 9 MUHAMMED SHIJIL (2020) 10 NASHABAB BABY SARALA MEENAKSHIKUTTY SANKARANUNNI JALAJA @ AMMINI RAGINI @ SINDHU VANAJA @ BINDU NISHA INDHU SAINABA MUJEEB
A. BADHARUDEEN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court