IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 178 of 2010()
1. REGHUNATHAN, AGED 54, S/O.GOVINDAN,
... Petitioner
Vs
1. DINESAN, S/O. BHARATHAN ACHARI,
... Respondent
2. SOMASEKHARAN NAIR,
3. GIREESAN, S/O. GOVINDAN,
For Petitioner :SRI.G.S.REGHUNATH
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :08/06/2010
O R D E R
THOMAS P JOSEPH, J.
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C.R.P.No.178 of 2010
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Dated this 08th day of June, 2010
ORDER
Plaintiff No.1 in O.S.No.478 of 1999 of the court of learned
Additional Munsiff-I, Thiruvananthapuram is the revision petitioner.
He along with respondent No.3 sued respondent Nos.1 and 2 for
declaration that the sale deed dated 23-09-1998 executed by him
and respondent No.3 is only a security for the loan transaction with
respondent Nos.1 and 2 and seeking re-conveyance of the property.
Since petitioner was in Gulf the case was being conducted by
respondent No.3 and it was dismissed for default on 03-07-2003.
Petitioner and respondent No.3 filed I.A.No.6944 of 2003 for
restoration of the suit which also ended in a dismissal on 28-10-
2003. Petitioner and respondent No.3, after about 4= years of
dismissal of I.A.No.6944 of 2003 preferred C.M.Appeal.No.59 of
2008 with I.A.No.2701 of 2008 to condone the delay in filing that
appeal. Learned District Judge was not impressed by the reason
stated by petitioner and respondent No.3 in seeking condonation of
delay, dismissed that application and consequently the appeal as
well. That judgment is under challenge in this revision petition.
Learned counsel for petitioner, placing reliance on the decision of
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: 2 :
the apex court in Collector, Land acquisition, Anantniag and
Another Vs. Mst. Katiji & Ors. (AIR 1987 SC 1353), N
Balakrishnan Vs. Krishnamurthy (AIR 1988 SC 3222) and
M.K Prasad Vs. P. Arumugan (AIR 2000(1) SC 2497) has
urged that appellate court was not correct in dismissing application
to condone the delay. According to the learned counsel facts and
circumstances of the case warranted indulgence of the court. It is
also contended by learned counsel that the reason stated by
learned District Judge in refusing to condone the delay is not
factually correct. Learned counsel submitted that stake involved in
the case is very high in that document which is sought to be set
aside is in respect of valuable property which according to
petitioner and respondent No.3 was executed merely as a security
for the loan availed by petitioner while he went abroad.
2. No doubt decisions on the point say that the courts
have to take a liberal approach while approaching the request for
condonation of delay. But as Section 5 of the Limitation Act (for
short, “the Act”) states, condonation of delay is possible only when
“sufficient cause” is shown and as the Supreme Court says in
Ramlal & Ors. Vs. Rewa Coalfields Ltd (AIR 1962 SC 361)
question of court exercising discretion in the matter arises only
when the party has shown sufficient cause. The word “sufficient”
means adequate, effective, sufficient quantity, enough and the
word “cause” means that which produces an effect, by or through
C.R.P.No.178 of 2010
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which anything happens, a motive, an inducement etc. The Gujarat
High Court in Municipal Corporation of Ahamedabad Vs.
Voltas Ltd. (AIR 1995 Guj 29) has held that the expression
“sufficient cause” is not a question of principle but is a question of
fact to be decided depending on the facts and circumstances of
each case and that whether to condone the delay or not depends on
the facts and circumstances of the case involved as “sufficient
cause” depends only on the facts placed before court by the
applicant. The Supreme Court in Rajendar Singh & Ors. Vs.
Santa Singh & Ors. (AIR 1973 SC 2537) states that the object
of law of limitation is to prevent disturbance of what may have
been acquired in equity and justice by long enjoyment or what may
have been lost by party’s own inaction, negligence or laches. It is
stated, the law of limitation is in accordance with the maxim
“interest reipublicae ut sit finis litium” meaning that the interest of
the state requires that there should be an end to litigation (See
(1852)5 Moor Ind. App. 234). In R.B.Policies at Lloyd’s V.
Butler (1949(2) ALL.E.R 226) quoting Best, C.J. In A’ Court
Vs. Cross, (3 Bing. 332) it is stated that “long dormant claims
have often more of cruelty than of justice in them”. Question
whether delay has to be condoned has to be approached in the
backdrop of above legal position and taking into account the
factual situation emerging in the case. Here is a case where the
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registered sale deed which is impugned in the suit is dated 23-09-
1998 and of course the suit was filed in the year 1999 alleging that
it is executed only as a security. That suit was dismissed on 03-07-
03 after 4= years of institution of the suit. I.A.No.6944 of 2003 for
restoration of the suit itself was dismissed on 28-10-2003. It is 4=
years thereafter that the C.M.Appeal was filed challenging order
dated 28-10-2003. Reason stated is that respondent No.2 had
approached Advocate Asok Kumar who advised him to file a fresh
suit and accordingly parties were waiting for the counsel to
prepare a fresh suit and that resulted in the delay. Then they were
advised to file C.M.Appeal. Thereafter clerk of the counsel was
instructed to get copy of the order on I.A.No.6944 of 2003 and on
getting a copy of the same C.M.Appeal was filed. Learned District
Judge pointed out in the impugned judgment that though
explanation stated by petitioner and respondent No.3 for
condonation of delay is that they took advise from Advocate Asok
Kumar. Records revealed that a senior lawyer of the Bar Adv. T
Devasahayam was appearing for petitioner and respondent No.3 in
the suit in which case there was no occasion for petitioner and
respondent No.3 to have sought legal advise from Adv. Asok Kumar
who was a junior practicing with Advocate T Devasahayam.
Learned counsel has an explanation that Adv. Asok Kumar had set
up independent office and was conducting the case but, no such
explanation was offered before the learned District Judge. It is
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very difficult to think that for about 4= years even on the advise
given by the junior counsel petitioner and respondent No.3 were
waiting to get the new suit prepared by the counsel. For about 4=
years they did not move. It is not as if every wrong advise by
counsel justified the delay. Here is a case where there is a
registered assignment deed in favour of respondent Nos.1 and 2
which stated that they purchased the property for valid
consideration. About 4= years the suit was dismissed for default.
It is after another 4= years that dismissal of the application to set
aside the dismissal was challenged in appeal.
3. Having regard to the facts and circumstances of the
case I am not inclined to accept the argument of learned counsel
for petitioner that sufficient cause has been shown by petitioner
and respondent No.3 and that discretion of the court in the matter
ought to have been exercised in their favour. I am not persuaded
to think that there is any illegality or irregularity committed by
learned District Judge in dismissing the application to condone the
delay and consequently the appeal as well so that this court in
exercise of its supervisory power is required to interfere.
Resultantly revision petition fails and it is dismissed.
(THOMAS P JOSEPH, JUDGE)
Sbna/-