Sudheesh Babu.S.Sugeeth Vs Biji Roy

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 2025:KER:23097

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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 M.A.ABDUL HAKHIM

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TUESDAY, THE 18TH DAY OF MARCH 2025 / 27TH PHALGUNA, 1946

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RSA NO. 614 OF 2024

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AGAINST THE JUDGMENT DATED 12.07.2018 IN AS NO.155 OF 2016 OF
ADDITIONAL DISTRICT COURT – V, KOTTAYAM ARISING OUT OF THE
JUDGMENT DATED IN OS NO.131 OF 2014 OF MUNSIFF COURT, ETTUMANOOR

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APPELLANT/RESPONDENT/DEFENDANT:

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SUDHEESH BABU.S.SUGEETH
AGED 60 YEARS

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S/O T.K.DAMODHRAN T.C.15/729, INDOTECH ENGINEERS C.S.M
NAGAR HOUSE NO 11(1),SASTHAMANGALAM THIRUVANATHAPURAM
695010 NOW RESIDING AT S.F.S PARK VILLA NO 50 PEYAD
KATTUVILA THIRUVANTHAPURAM, PIN – 695 573

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BY ADVS.
SHIBU JOSEPH
AJITH VISWANATHAN
SAYED MANSOOR BAFAKHY THANGAL
HAIRA
AMAN MANZOOR
VRINDA BABU
SARATH VISWANATHAN

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R.S.A.No.614 of 2024 2 2025:KER:23097

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RESPONDENT/APPELLANT/PLAINTIFF:

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BIJI ROY
AGED 51 YEARS
PROPREITRIX PAN STRUCTURAL SYSTEM, 1 ST FLOOR ,VI /542
PANDARAKULAM BUILDING, ATHRIRAMPUZHA P.O KOTTAYAM,
PIN – 686 562

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BY ADVS.
JOHN JOSEPH VETTIKAD
C.JOSEPH JOHNY

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
18.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

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C.M.Appl.No.2/2024

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This is an application to condone delay of 2111 days in filing the appeal. The application is opposed by the respondent by filing counter affidavit.

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I have heard the learned counsel for the applicant Sri.Shibu Jospeh and the learned counsel for the respondent Sri. John Joseph Vettikad.

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The learned counsel for the applicant pointed out that even though the delay is shown as 2111 days, 715 days, which was permitted to be excluded on account of COVID pandemic, is excluded, the delay is only 1,396 days.

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The learned counsel invited my attention to the merits of the matter to substantiate the point that the applicant has a meritorious case in the appeal, and hence, the delay is liable to be condoned. The learned counsel for the applicant relied on the cited the

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decision of the Hon’ble Supreme Court in Collector, Land Acquisition, Anantnag and Another v. Mst.Katiji and Others [1987 KHC 911], M.K.Prasad v. P.Arumugam [2001 KHC 1132] and N.Balakrishnan v. M.Krishnamurthy [1998 KHC 1163] to substantiate the point that that refusal to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated; that as against this, when the delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties; that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non deliberate delay. The learned Counsel contended that in the present case, if the delay is not condoned, it would defeat the substantial justice in the matter as the appellant is fully entitled to succeed in the first appeal.

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On the other hand, the learned counsel for the respondent contended that, there is clear laches on the part of the applicant in filing the appeal and it is the cause of huge delay involved in the matter.

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I have considered the rival contentions.

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On going through the affidavit in support of the application, it is seen that the impugned judgment of the First Appellate Court was passed on 12.07.2018, and the application for the certified copy was submitted on the very next day on 13.07.2018, and the same was delivered on 21.08.2018. The reason stated in the affidavit is that the Advocate Clerk attached with the Office of the Counsel for the appellant omitted to inform the appellant regarding the receipt of judgment and decree from the First Appellate Court and he came to know about the disposal of the appeal only on 18.01.2024, when he received notice in E.P.No.237/2019 from the Munsiff’s Court, Thiruvananthapuram to execute the decree passed by First Appellate Court.

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The aforesaid facts itself would reveal that, for the long period from

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21.08.2018 to 18.01.2024, the Appellant did not make any enquiry with his counsel about the progress of with the appeal entrusted by

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him. In the recent decision Nitin Mahadeo Jawale v. Bhaskar Mahadeo Mutke [2024 KHC OnLine 6660], the Hon'ble Supreme Court has deprecated the growing tendency of the part of the litigants in throwing the entire blame on the head of the advocate. The Hon'ble Supreme Court has made a categorical finding that 'even if we assume for a moment that the concerned lawyer was careless or negligent, this, by itself, cannot be a ground to condone long and inordinate delay as the litigant owes a duty to be vigilant of his own rights and is expected to be equally vigilant about the judicial proceedings pending in the court initiated at his instance. The litigant, therefore, should not be permitted to throw the entire blame on

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the head of the advocate and thereby disown him at any time and seek relief' . In view of the above dictum of the Hon'ble

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Supreme Court, the appellant shall not be permitted to put the blame on the counsel who appeared for him in the Trial Court or his clerk. When a litigant has entrusted a case with a counsel, the litigant has a duty to verify the progress of the proceedings from the counsel from time to time. Even if the counsel fails to inform the party regarding the disposal of the case, it could not be taken as a ground to condone the delay. Here, the delay involved in the matter is 1336 days, even after excluding the period of 705 days on account of COVID pandemic. The aforesaid facts would clearly indicate that, there is clear laches on the part of the Appellant in not enquiring the progress of the appeal for long period.

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True, there could not be any straight jacket formula for general application. The discretion has to be exercised liberally to advance substantial justice by allowing the lis to be considered on merits and the Courts should not stick on to the rigid rule of law in the matter of condonation of delay. The Courts shall not

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allow substantial justice to be defeated on account of delay. The Courts shall adopt a justice-oriented approach while considering the question of condonation of delay. The question is whether the party has satisfied the court that he had sufficient cause for the delay in the facts and circumstances of the case. The well-accepted principle is that the law comes to the help of only those who are vigilant in prosecuting the rights and not to the help of those who sleep over their rights. The purpose of the law of limitation is to attain finality of the litigation. If undue lenience and misplaced sympathy are shown in favour of persons who have been sleeping over their rights, it is against the principle underlying the law of limitation. When the delay is not sufficiently explained by the Appellant, the delay is not liable to be condoned, even if there is merit in the appeal. The delay involved is inordinate amounting to 1336 days. No sustainable reason is made out. Even if a liberal view is taken in the

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