IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 245 of 2010()
1. ASMABEEVI, D/O.KUNHU MUHAMMED, AGED
... Petitioner
Vs
1. KUNHIMALU @ KHADEEJA,
... Respondent
2. RAZACK,
For Petitioner :SRI.JACOB SEBASTIAN
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :18/03/2010
O R D E R
THOMAS P.JOSEPH, J.
= = = = = = = = = = = = = = = = = = = = = = = =
R.S.A. NO.245 of 2010
= = = = = = = = = = = = = = = = = = = = = = = = =
Dated this the 18th day of March, 2010
J U D G M E N T
———————
Appellant before me is the plaintiff in O.S.No.167 of
1998. That is a suit for recovery of possession of the property
referred to in the plaint schedule. According to the appellant
property belong to her as per document No.1094 of 1996
executed by one Latheef. The said Latheef had earlier
assigned 7= cents of land to the appellant and her children
as per document No.2641 of 1988. Property of respondents is
situated on the south of the suit property. She alleged
trespass into the suit property on 18.3.1998. Respondents
contended that appellant has no title or possession over the
disputed plot of land and that Latheef had no property with
him after assignment deed No.2641 of 1988 (relating to the
7.5 cents assigned to the appellant and her children). They
also contended that execution of assignment deed No.1094 of
1996 was only to facilitate a false claim over their property.
Appellant gave evidence as P.W1 and proved Exts.A1 to A4.
On the side of respondents D.W.1 was examined and they
R.S.A. No.245 of 2010
-: 2 :-
proved Exts.B1 to B3. Exhibit C1 series are the report and
plan produced by the Advocate Commissioner. Trial court
found that appellant is not entitled to recover possession
of the property. That finding was based also on an
admission made by the appellant as P.W.1 that the entire
property of Latheef was assigned to her as per Ext.B2,
assignment deed No.2641 of 1988. After 1350 days
appellant filed A.S.No.67 of 2008 with I.A. No.1648 of 2007
under Section 5 of the Limitation Act (for short, “the Act”)
to condone the delay in filing the appeal. Reason stated in
the affidavit is that she had instructed her counsel to
prefer an appeal, counsel promised to do so but in August,
2007 when she made enquiry she was told that no appeal
had been filed. Application was opposed by the respondent
denying the statements in the affidavit of the appellant as
to cause of delay and contending that there was no
sufficient cause to condone the delay. Appellant gave
evidence as P.W1. Respondents examined her counsel as
R.W.1. Learned Sub Judge found that reasons stated by the
appellant for condonation of delay is proved to be incorrect
and hence the request for condonation of delay cannot be
R.S.A. No.245 of 2010
-: 3 :-
entertained. I.A. No.1648 of 2007 was dismissed.
Consequence was dismissal of A.S. No.67 of 2008. Hence
the Second Appeal raising by way of substantial question of
law whether first appellate court was legally correct on the
facts and circumstances of the case in dismissing I.A.
No.1658 of 2007. Learned counsel has placed reliance on
the decisions of the Supreme court in Collector, Land
Acquisition, Anantnag v. Katiji (AIR 1987 SC
1353), State of Kerala v. Havea Combines (2009
[1] KLT 451) and State of Karnataka v. Moideen
Kunhi (AIR 2009 SC 2577). Learned counsel
submitted that the expression “sufficient cause” must be
given liberal interpretation so as to advance cause of
justice, appellant has a meritorious case to be argued
before the first appellate court and on the facts and
circumstances of the case, also considering the pitiable
situation in which the appellant is placed first appellate
court ought to have exercised discretion in favour of the
appellant and condoned the delay. According to learned
counsel even if delay is condoned what could happen at the
R.S.A. No.245 of 2010
-: 4 :-
worst is that if the appeal of the appellant is not meritorious
it would end in a dismissal.
2. Section 5 of the Act gives discretionary
jurisdiction on the court to condone delay when it is shown
that party concerned was prevented by sufficient cause
from not filing the appeal on time. The Supreme Court in
Ramlal v. Rewa Coalfields Ltd (AIR 1962 SC 361)
has stated that discretion in that regard can be exercised
only if sufficient cause is shown as is clear from the
expression “may be admitted” occurring in Sec.5 of the Act.
No doubt, authoritative pronouncements on the point say
that in considering whether sufficient cause is made out
courts have to adopt a liberal approach so as to advance
the cause of justice. At the same time courts cannot also
be oblivious of the fact that law of limitation is a Statute
of peace and repose intended to give finality for decisions
of the court and to prevent long, dormant claims being
raked up again. Question whether a party was prevented
by sufficient cause from not preferring the appeal on time
has to depend on the facts and circumstances of each
case. In Collector, Land Acquisition, Anantnag v.
R.S.A. No.245 of 2010
-: 5 :-
Katiji (supra) Supreme Court has stated the guidelines to
be borne in mind while considering sufficient cause is
made out. One of the circumstances stated is that
ordinarily a litigant does not stand to benefit by lodging an
appeal late. Legislature has conferred power on the court
under Sec.5 of the Act to enable the court to do substantial
justice to the parties by disposing of matters on merit. In
State of Kerala v. Havea Combines (supra) mistaken
legal advice was held to be not generally applicable as
sufficient cause to condone delay. It was held that the
question whether there was sufficient case must be
decided on the facts of the case. In State of Karnataka
v. Moideen Kunhi (supra) decision taken is that the
expression ‘sufficient cause’ must receive a liberal
consideration to advance cause of justice. I think, there
could be no quarrel on the above propositions. Power of
the court is to administer justice and in cases where a
liberal interpretation of the expression ‘sufficient cause’ is
required it is the responsibility of the court to do so. It is
also the position of law that whether circumstances pleaded
would amount to sufficient cause has to be decided on the
R.S.A. No.245 of 2010
-: 6 :-
facts pleaded. Court cannot go beyond the facts pleaded to
hold that party concerned has sufficient cause to prefer the
appeal beyond the prescribed time. The Supreme Court in
Pundik J.Patil v. Executive Engineer (2009 [1]
KLT SN 25 (Case No.26) SC ) held that incorrect statement
made in the application seeking condonation of delay itself
is sufficient to reject the application without any further
enquiry as to whether the averments made in the
application reveal sufficient cause to condone the delay.
That is because a party taking a false stand to get rid of
the bar of limitation should not be encouraged to get any
premium on the falsehood on his part by condoning delay.
3. Now coming to the facts pleaded in the case on
hand as I stated earlier case set up by the appellant is that
after the suit was dismissed on 9.10.2003 copy of judgment
and decree were applied on 3.11.2003 and she had
instructed the counsel to prefer the appeal and the counsel
in turn promised to do so. In August, 2007 (i.e., after
almost 4 years) she enquired about the matter and learnt
that no appeal had been preferred. Appellant gave
evidence as P.W1 in that line. But in cross-examination she
R.S.A. No.245 of 2010
-: 7 :-
stated that she got back the case records from her counsel
on 27.11.2003. This is also proved by the endorsement
made by the appellant (Ext.X1) to that effect. She has also
stated that she had consulted several lawyers in the
matter and all of them had advised her to file appeal. But
to none of them the case file which was with her was given.
Respondents examined the counsel for the appellant as
R.W.1. He stated that after the dismissal of the suit
appellant got back the file from him (as admitted by P.W.1
and as seen from Ext.X1). Thereafter appellant approached
the Women’s Commission, Lok Adalath and the Police with
her case as to recoverability of the property.
4. The only ground pleaded by the appellant is
about the instruction given to the counsel and promise
made by him to file appeal. That has been proved to be
incorrect, if not false by the evidence of P.W.1 and R.W.1
and Ext.X1. Once reason stated by the appellant is found
to be incorrect then the question of liberal interpretation of
the expression “sufficient cause” based on incorrect facts
did not arise as observed by the Supreme Court in Pundik
J.Patil v. Executive Engineer (supra). In such a situation
R.S.A. No.245 of 2010
-: 8 :-
court cannot travel beyond the case pleaded by the
appellant to find out a case for the appellant and then hold
that there is sufficient cause and condone the delay.
Appellant has to blame herself for the delay. In the light of
the above I am inclined to think that by no stretch of
imagination reason stated by the appellant can be brought
within the mischief of the expression “sufficient cause”.
That being the legal and factual position I do not find
anything illegal in the first appellate court refusing to
condone the delay. No substantial question of law is
involved.
Second Appeal is dismissed in limine.
Interlocutory Application Nos.618 and 619 of 2010
shall stand dismissed.
THOMAS P.JOSEPH, JUDGE.
vsv