Sambath Babu, Vs P. Purushothaman — Kerala HC (2025) — LawSathi Research

Sambath Babu, Vs P. Purushothaman — Kerala HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Modification of the Trial Court decree: monthly damages for use and occupation (Relief No.4) reduced from Rs.20,000/- to Rs.3,000/- per month; judgment and decree maintained in all other respects.

Issue for consideration

Whether the delay of 342 days in filing A.S.No.121/2023 was sufficiently explained, so that the First Appellate Court ought to have allowed the application to condone delay. +1 more

Court's answer

The appellant did not sufficiently explain the 342 days' delay before the First Appellate Court (no explanation for the five Execution Court appearances during the delay period; the medical certificate unproved as the issuing doctor was not examined); the First Appellate Court was therefore fully justified in dismissing the application to condone delay.

Ratio / Principle

Although this Court is normally not expected to consider the merits where the first appeal was dismissed consequent to dismissal of the condonation application, it will not shut its eyes to a glaring illegality committed by the Trial Court.

Key takeaways

The rate of damages of Rs.20,000/- per month ordered by the Trial Court, measured against the agreed monthly license fee of Rs.1,200/- (sustained exposure exceeding Rs.16,00,000/-), is quite unconscionable.ratio¶53
After the respondent's counsel, on instructions, conceded that the monthly damages could be fixed at Rs.3,000/- per month, the Court held that the Trial Court judgment and decree could be modified to that effect.ratio¶59
Operative disposal: the Regular Second Appeal is disposed of by modifying the Trial Court judgment and decree, substituting the rate of damages of Rs.20,000/- per month in Relief No.4 with Rs.3,000/- per month; the judgment and decree is maintained in all other respects.

Detailed headnote1 paragraphs

Defendant's Regular Second Appeal (RSA No.544 of 2024, decided 08.04.2025) against the District Court, Kozhikode's judgment/decree dated 24.01.2024 in A.S.No.121/2023 dismissing his first appeal because I.A.No.1/2023 seeking condonation of 342 days' delay was rejected; underlying decree: O.S.No.315/2018, Principal Munsiff Court-I, Kozhikode (dated 09.11.2022) - mandatory injunction to vacate the plaint schedule shop, Rs.31,170/- license fee arrears, Rs.20,000/- damages to the building, and Rs.20,000/- per month damages for use and occupation from 22.06.2018. Held: (i) delay not sufficiently explained - no explanation for the appellant's five appearances before the Execution Court during the delay period, and the medical certificate unsupported as its issuing doctor was not examined; the First Appellate Court was fully justified in dismissing the condonation application; (ii) although merits are normally not examined where the first appeal fails on delay, the Court would not shut its eyes to the glaring illegality of awarding Rs.20,000/- per month damages against an agreed license fee of Rs.1,200/- (exposure exceeding Rs.16,00,000/-), terming the rate 'quite unconscionable'; (iii) on the respondent-counsel's concession, monthly damages substituted at Rs.3,000/- per month (Relief No.4); decree maintained in all other respects. Coram: M.A. Abdul Hakhim, J.

2025:KER:30687

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM

TUESDAY, THE 8TH DAY OF APRIL 2025 / 18TH CHAITHRA, 1947

RSA NO. 544 OF 2024

AGAINST THE JUDGMENT AND DECREE DATED 24.01.2024 IN
AS NO.121 OF 2023 OF DISTRICT COURT, KOZHIKODE ARISING OUT
OF THE JUDGMENT AND DECREE DATED 09.11.2022 IN OS NO.315 OF
2018 OF PRINCIPAL MUNSIFF COURT-I, KOZHIKODE

APPELLANT(S)/APPELLANT/DEFENDANT:

SAMBATH BABU,
AGED 54 YEARS
S/O. VALIYAPURACKAL CHANDRAN,
PERADI HOUSE,
PADINHATTUMURI AMSOM,
MORIKKARA DESOM,
(PO) MORIKKARA,
KOZHIKODE DISTRICT,
PIN - 673611

BY ADVS.
JAMSHEED HAFIZ
T.S.SREEKUTTY

RESPONDENT(S)/RESPONDENT/PLAINTIFF:

P. PURUSHOTHAMAN
AGED 71 YEARS
S/O. ANALAM PARAMBATH KUMARAN,
KOLLADATH HOUSE,
PADINHATTUMURI AMSOM,

RSA NO.544 OF 2024

2025:KER:30687

MORIKKARA DESOM,
(PO) MORIKKARA,
KOZHIKODE DISTRICT,
PIN - 673611

BY ADVS.
TERRY V. JAMES
ABRAHAM KOLLINAL(K/1092/2012)

THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 08.04.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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JUDGMENT

The appellant is the defendant in the suit. The suit was for mandatory injunction to evict the defendant from the plaint schedule shop, arrears of license fee and damages for use and occupation. The Trial Court decreed the suit.

The defendant filed A.S.No.121/2023 before the First Appellate Court with I.A. No.1/2023 to condone the delay of 342 days. I.A. No.1/2023 was dismissed. Consequently A.S.NO.121/2023 was also dismissed. This appeal is filed challenging the judgment and decree passed by the First Appellate Court dismissing the appeal, taking grounds against the order dismissing the application to condone delay.

I heard the learned counsel for the appellant Shri.Jamsheed Hafiz and the learned counsel for the

respondent Sri.Terry.VJames .

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RSA NO.544 OF 2024

The learned counsel for the appellant submitted that the suit was listed for trial on 08/11/2024 and on that day the plaintiff was suffering from acute bronchitis and the defendant filed an application for adjournment producing Medical Certificate. The Trial Court dismissed the application on the same day and proceeded with the suit. On account of the continued illness, he could not contact the counsel, and after recovering from the illness, he contacted the counsel and thereafter immediately filed an appeal before the First Appellate Court. The learned counsel contended that the delay is sufficiently explained before the First Appellate Court. The First Appellate Court ought to have condoned the delay taking a lenient approach in order to enable consideration of the matter on merits, rather than taking hyper technical approach.

On the other hand, the learned counsel for the respondent

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contended that the suit is of the year 2018, and the Trial Court could dispose of the suit only in the year 2022. All along the respondent had been dragging the proceedings. At every stage, he has caused unexplained delay. Before the First Appellate Court, he had filed the appeal with application to condone delay. Before this Court also he has filed the appeal with an application to condonation delay. The First Appellate Court rightly dismissed the Application to condone delay. There is nothing to interfere.

I have considered the rival contentions.

The Trial Court passed judgment on 09/11/2022. The contention of the appellant is that he was laid up with bronchitic and asthmatic disease from 05.12.2022 to 14.11.2023, which is proved by the Medical Certificate produced by him. The appeal was filed by the defendant producing a Medical Certificate dated 14/11/2023 to

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RSA NO.544 OF 2024

explain the delay in filing the appeal. The First Appellate Court found the respondent had specifically pleaded that the appellant had appeared before the Execution Court on five occasions during the period of delay. The dates of such appearance were specifically referred to in the Counter Affidavit filed by the respondent. The respondent produced certified copies of the Vakalath and Counter in the execution proceedings to prove that the appellant was participating in the execution proceedings during the relevant time. When the respondent took such contention, no explanation whatsoever was offered by the appellant with respect to the appearances before the Execution Court and nonfiling of the appeal during the said period. Even though the appellant produced a Medical certificate, the Doctor who issued the same was not examined to prove the Medical Certificate. I am of the view that the

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appellant did not sufficiently explain the delay before the First Appellate Court. Hence the First Appellate Court was fully justified in dismissing the application to condone delay.

The learned counsel for the appellant pointed out that Trial Court granted Rs.20,000/- per month for use and occupation when the agreed monthly license fee was Rs.1,200/-.

On perusing the judgment, it is seen that the Trial Court issued a mandatory injunction to vacate the plaint schedule building against the defendant. It was further directed to pay Rs.31,170/- as arrears of license fee, Rs.20,000/- as damages caused to the building, Rs.20,000/- per month as damages for the illegal use and occupation of the plaint schedule building from 22/06/2018 till he surrenders the vacant possession of the building to

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the plaintiff.

10.Normally, this Court is not expected to consider the merits

of the claim when the appeal is dismissed by the First appellate Court consequent to the dismissal of the application to condone delay. But this Court can not shut its eyes when a glaring illegality is committed by the Trial Court. The damages ordered by the Trial Court is with effect from 22.06.2018. If the decree is sustained, the defendant, who had been paying a monthly license fee @ Rs.1,200/-, will have to pay more than Rs.16,00,000/- to the plaintiff. The rate of damages ordered by the Trial Court is quite unconscionable.

11.When this Court expressed that the said amount of Rs.20,000/- is highly exorbitant, when the monthly license fee of Rs.1,200/- is taken into consideration and that this Court will be compelled to admit the appeal on this

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ground, the learned counsel for the respondent after taking instructions from the respondent fairly conceded

that the said monthly damages can be fixed at the rate Rs.3,000/- per month. In view of the said submission, I am of the view that the judgment and decree passed by the Trial Court could be modified to that effect.

12.Hence, I dispose of this Regular Second Appeal modifying the judgment decree of the Trial Court substituting the rate of damages of Rs.20,000/- per month in Relief No. 4 with Rs.3,000/- per month. The judgment and decree passed by the Trial Court is maintained in all other respects.

Sd/-

M.A.ABDUL HAKHIM

JUDGE

sms