IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 10TH JUNE 2010 / 20TH JYAISTHA 1932 WP(C).No. 16438 of 2005(F) -------------------------- IA NO.31/2004 IN A.A. NO.32/2004 OF LAND REFORMS APPELLATE AUTHORITY, THRISSUR. PETITIONER(S): --------------- CHOLA SAHIDA, D/O.AHAMMEDKUTTY HAJI, KEEZHUPPARAMBA, AMSOM AND DESOM, ERNAD TALUK. BY ADV. SRI.SAJU.S.A RESPONDENT(S): --------------- 1. THRIKKALAYOOR DEVASWOM, REPRESENTED BY EXECUTIVE OFFICER, K.BALAJI, S/O.K.K.KARUNAKARA MENON, MANJERI AMSOM AND DESOM, ERNAD TALUK, MALAPPURAM DISTRICT. 2. THRIKKALAYOOR DEVASWOM, FIT PERSON THONNATH CHERIYAKKAN MASTER, S/O.UNNERIKUTTY, KEEZHUPARAMBA AMSOM AND DESOM, ERNAD TALUK, MALAPPURAM DISTRICT. 3. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. ADV. SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE FOR R1 SMT.PRABHA R.MENON FOR R1 SRI.M.KRISHNAKUMAR FOR R1 GOVERNMENT PLEADER SHRI P.R.JAYAKRISHNAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/06/2010, ALONG WITH WPC NO. 12224 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.16438/2005 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE AFFIDAVIT DATED 18.5.2004 EXT.P2 TRUE COPY OF THE OBJECTION DATED 23.8.2004 EXT.P3 TRUE COPY OF THE ORDER OF LAND REFORMS APPELLATE AUTHORITY, THRISSUR IN IA NO.31/2004 IN AA 32/2004 DATED 24.01.2005. //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) Nos.16438 of 2005 & 12224 of 2007 -------------------------------------- Dated this the 10th day of June, 2010. JUDGMENT These Writ Petitions arise from a dispute as to the claim of tenancy raised by petitioner in W.P.(C) No.16438 of 2005 and the binding nature of a purchase certificate she has obtained from the Land Tribunal. According to the petitioner in W.P.(C) No.16438 of 2005 she, with due notice to the respondent- Devaswom filed application for purchase of landlord's rights in the Land Tribunal in the year 1976 and after complying with the formalities a certificate of purchase was issued to her. In the year 1996, respondent-Devaswom filed a suit for recovery of possession of property in the Sub Court, Manjeri alleging that petitioner in W.P.(C) No.16438 of 2005 is a trespassor. That suit was resisted by petitioner in W.P.(C) No.16438 of 2005 contending that she is not liable to be evicted as she is a tenant who has purchased landlord's rights in the year 1976. In the year 2004, respondent filed A.A.No.32 of 2004 before the Land Reforms Appellate Authority challenging the order issuing purchase certificate in favour of petitioner and as the appeal was belated she filed I.A.No.31 of 2004 for condonation of the delay. That application was opposed by petitioner stating that there is no sufficient cause shown to condone the delay. The Appellate Authority as per Ext.P3, order dated 24.01.2005 having regard to the circumstances allowed I.A.No.31 of 2004 and condoned the delay holding that interest of justice required that respondent, on the facts and circumstances of the WP(C) Nos.16438/2005 & 12224/2007 2 case is given an opportunity to contest claim of petitioner. That order is under challenge in W.P.(C) No.16438 of 2005. This Court had disposed of the Writ Petition on 16.01.2008 but, it was reviewed as the order was passed without hearing petitioner. Thus the Writ Petition has come up before me for hearing. In the meantime respondent in W.P.(C) No.16438 of 2005 filed I.A.No.264 of 2007 in the Sub Court, Manjeri for stay of trial of the suit pending decision of appellate authority in A.A.No.32 of 2004. That application was dismissed by the learned Sub Judge vide order dated 02.03.2007 stating that Section 10 of the Code of Civil Procedure (for short, “the Code”) has no application since that provision applied only if the subsequently instituted proceeding is a suit. Dismissal of I.A.No.264 of 2007 is under challenge at the instance of plaintiff (Devaswom) in the suit in W.P.(C) No.12224 of 2007. Since these matters are in respect of the same subject matter, the same are being disposed of by a common judgment. 2. Learned counsel for the petitioner in W.P.(C) No.16438 of 2005 has contended that the Appellate Authority has wholly gone wrong in allowing I.A.No.31 of 2004 (in A.A.No.32 of 2004) and condoning the delay of almost 28 years in filing the appeal. Learned counsel contends that even if it is assumed that delay till 1996 could be said to be explained, there is no explanation for the delay which occurred thereafter and the Appellate Authority has not adverted to that aspect of the matter. Learned counsel further contends that what the WP(C) Nos.16438/2005 & 12224/2007 3 Appellate Authority considered was not whether respondents in W.P.(C) No.16438 of 2005 had sufficient cause in not preferring the appeal on time but whether interest of respondents will be affected if the appeal is not taken on file which according to the learned counsel is not a consideration under Section 5 of the Limitation Act (for short, “the Act”). So far as the order which is the subject matter of W.P.(C) No.12224 of 2007 is concerned, it is argued by learned counsel that no question of application of Section 10 of the Code arose since concededly, it is not a case where more than one suits are pending and the trial of the subsequent suit is sought to be stayed. Since subsequent proceeding is an appeal pending before the Appellate Authority no question of application Section 10 of the Code arose. Learned counsel prayed that W.P.(C) No.16438 of 2005 may be allowed setting aside the order of Land Reforms Appellate Authority on I.A.No.31 of 2004 and that W.P.(C) No.12224 of 2007 may be dismissed. In response, it is contended by learned counsel for respondents in W.P.(C) No.16438 of 2005 that it is a fit case where the delay, notwithstanding its length had to be condoned to give respondents an opportunity to contest the case which the Appellate Authority has rightly done and hence, this Court is not required to interfere in exercise of its power under Article 227 of the Constitution. So far as the order of learned Sub Judge refusing to stay the trial of the suit is concerned, it is contended by learned counsel that if not under Section 10 of the Code, court had the power to grant stay which the learned Sub Judge ought to WP(C) Nos.16438/2005 & 12224/2007 4 have exercised in view of the contentions in both cases and since if the trial of suit is not stayed there is possibility of divergent findings being entered. 3. No doubt, so far as application of Section 5 of the Act is concerned, party seeking condonation must show that he had sufficient cause in not filing the appeal on time. The expression “sufficient” means, adequate, effective, sufficient quantity , enough, while the word “cause” means that which produces an effect, by or through which anything happens, motive, inducement, etc. Now the question is whether on the facts and circumstances stated in the affidavit in support of I.A.No.31 of 2004 it could be said that respondents in W.P.(C) No.16438 of 2005 were prevented by sufficient cause from not filing the appeal on time. Decisions on the point inform me that in considering whether “sufficient cause” is made out court has to adopt a liberal approach with the object of advancing justice rather than going by technicalities and depriving an opportunity to the litigant to contest the case unless, there was something equivalent to contumacious negligence or laches on his part which a court of law could not entertain. The purchase certificate which petitioner in W.P.(C) No.16438 of 2005 relies on was obtained during 1976, according to the respondents without impleading them or persons responsible to represent the Devaswom and without notice to them. It is the case of respondents that purchase certificate was obtained behind their back collusively. It is a different matter whether even without preferring an appeal against the order of Land WP(C) Nos.16438/2005 & 12224/2007 5 Tribunal respondents could raise a plea in the suit and avoid the purchase certificate obtained by petitioner on proof that the certificate was obtained without notice to the respondents and it was obtained behind their back. Now they have chosen to challenge the order issuing purchase certificate before the Appellate Authority. It is the case of respondents that they learnt about issue of purchase certificate only from the written statement filed by petitioner in the civil suit in the year 1996. Therefore the delay from 1976 to 1996 is explained. Next question is whether delay from 1996 to 2004 till the appeal was presented before the Appellate Authority is explained. I must bear in mind while considering the expression 'sufficient case' that in the year 1996 respondents had instituted civil suit claiming recovery of possession on the allegation that petitioner is a trespassor and the civil court could have considered the issue whether purchase certificate issued in favour of petitioner was fraudulent and binding on respondents. It is true, immediately after 1996 respondents did not take steps to challenge the order issuing purchase certificate. But I must bear in mind that during the said period the suit filed by respondents before the civil court where the issue of fraud and collusion could have been raised was pending. In such a situation merely for the reason that the appeal under the Kerala Land Reforms Act (for short, “the KLR Act”) was preferred only in the year 2004 I am not persuaded to think that there was contumacious delay or laches on the part of respondents or that filing of the appeal was purportedly delayed. WP(C) Nos.16438/2005 & 12224/2007 6 Some laches if any, can be corrected by the common curative of costs. Though Appellate Authority has not in so many words stated about existence of sufficient cause it is discernible from what the Appellate Authority said that it was only just and proper on the facts and circumstances pleaded by parties to give respondents an opportunity to contest the case. If the issue of purchase certificate was fraudulent, authorities under the KLR Act owed an obligation to set it right. This is not a case where Appellate Authority has exercised its power illegally or perversely. The KLR Act empowered Appellate Authority to condone the delay on sufficient cause being shown. On the facts and circumstances of the case I do not find reason to interfere with the finding of the Appellate Authority that the delay caused in filing the appeal is to be condoned. 4. But, delay in filing of the appeal before the Appellate Authority was not due to any fault of petitioner. She is called upon to face a challenge against purchase certificate issued to her in the year 1976 for no fault of her. As such, allowing the application to condone delay required to be on terms. Having regard to the facts and circumstances of the case I direct the respondents, as a condition for allowing the application to condone delay to pay cost of Rs.5,000/- (Rupees Five thousand only) to the petitioner through her counsel in this case. 5. Now coming to W.P.(C) No.12224 of 2007 question is whether until the Appellate Authority decided the issue regarding tenancy in respect of the property trial of the suit has to be stayed. Learned Sub Judge is correct in WP(C) Nos.16438/2005 & 12224/2007 7 observing that in so far as subsequent proceeding is not a suit and the suit, O.S.No.84 of 1996 is instituted prior to the respondents in W.P.(C) No.16438 of 2005 preferring appeal before the Appellate Authority, question of stay under Section 10 of the Code did not arise. But in exceptional and appropriate cases it is within the power of court, even beyond the scope of Section 10 of the Code to stay trial of suit pending before it in exercise of the power under Section 151 of the Code. Finding of the appellate authority regarding tenancy may have a great bearing on the issue involved in the suit. In that situation it is only just and proper and I consider it necessary also to stay trial of O.S.No.84 of 1996 until the Appellate Authority decided the issue regarding tenancy. In the circumstances learned Sub Judge was not correct in dismissing I.A.No.264 of 2007. 6. I stated that the order condoning delay by the Appellate Authority should be subject to payment of cost as stated above. In the absence of challenge to the order issuing purchase certificate there is no reason to stay trial of O.S.No.84 of 1996. Hence I direct that the order under challenge in W.P.(C) No.12224 of 2007 will also be subject to the decision in W.P.(C) No.16438 of 2005. Resultantly, these Writ Petitions are disposed of in the following lines: i. In W.P.(C) No.16438 of 2005 it is directed that on payment of cost of Rs.5,000/- (Rupees Five thousand only) to the petitioner through her WP(C) Nos.16438/2005 & 12224/2007 8 counsel/deposit in this Court for payment to the petitioner within three weeks from this day and on filing a statement containing acknowledgment by counsel for petitioner in this Court, Writ Petition will stand dismissed in confirmation of the order passed by the Appellate Authority on I.A.No.31 of 2004 in A.A.No.32 of 2004. In case of non-compliance W.P.(C) No.16438 of 2005 will stand allowed setting aside the order dated 21.04.2005 on I.A.No.31 of 2004 in A.A.No.32 of 2004 and that application and consequently the appeal also will stand dismissed. ii. W.P.(C) No.12224 of 2007 is allowed, order on I.A.No.264 of 2007 in O.S.No.84 of 1996 of the court of learned Sub Judge, Manjeri is set aside and the application will stand allowed. Trial of O.S.No.84 of 1996 is stayed until the issue regarding tenancy is decided by the Appellate Authority. I direct that in case the condition in clause (i) is not complied and consequently W.P.(C) No.16438 of 2005 stands allowed, W.P.(C) No.12224 of 2007 will stand dismissed in confirmation of the order under challenge in that proceeding. Post the cases after three weeks. THOMAS P.JOSEPH, Judge. cks