IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 12TH MARCH 2010 / 21ST PHALGUNA 1931 RSA.No. 285 of 2010() --------------------- AS.125/2009 of DISTRICT COURT, THRISSUR OS.321/1996 of I ADDL.MUNSIFF COURT,THRISSUR .................... APPELLANT(S)/APPELLANTS/DEFENDANT & ASSIGNEE FROM DEFENDANT: -------------------- 1. CHIDAMBARAN, AGED 77, S/O.GOPALAN, KAVIL (HOUSE) KAINOOR VILLAGE, DESOM, THRISSUR TALUK. 2. RAJEEV, AGED 47, S/O.CHIDAMBARAN, KAVIL (HOUSE) KAINOOR VILLAGE, DESOM, THRISSUR TALUK. BY ADV. SRI.C.A.ANOOP RESPONDENT(S)/RESPONDENT/PLAINTIFF: --------------- RAJAN, AGED 60, S/O.GOPALAN, KAVIL (HOUSE) KAINOOR VILLAGE, DESOM, THRISSUR TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.285 of 2010 -------------------------------------- Dated this the 12th day of March, 2010. JUDGMENT Heard counsel for appellants. 2. Second Appeal arises from judgment and decree of learned District Judge, Thrissur in A.S.No.125 of 2009 dismissing that appeal as barred by limitation consequent to dismissal of I.A.No.655 of 2009. Respondent filed O.S.No.321 of 1996 for a decree for fixation of boundary and for prohibitory injunction against appellant No.1 (Appellant No.2 is the assignee from appellant No.1). There were two other connected suits as well. Trial court as per judgment dated 12.3.2003 decreed the suit in part restraining appellant No.1 from trespassing into the land beyond northern boundary of his property having an extent of 23 ½ cents in survey No.346 which is located and identified as the property of appellant No.1 in Ext.C5, plan. After 2203 days appellants preferred A.S.No.125 of 2009 along with I.A.No.655 of 2009 seeking to condone the delay. Learned District Judge was not impressed by the grounds stated for condonation of delay and dismissed the application as there was no sufficient cause made out and consequently the appeal as well. Hence the Second Appeal. It is contended by learned counsel that dismissal of I.A.No.655 of 2009 is not legal or proper. Learned counsel has a contention that the decree granted is not in relation to the suit property. RSA No.285/2010 2 3. Question is whether learned District Judge was correct in dismissing I.A.No.655 of 2009. True, for the purpose of deciding bonafides of the application it is possible to have a glance into the disputed questions. Learned counsel has given to me a copy of the plaint and Ext.C5, plan. As per the claim of respondent, he has right over plaint A and B schedule properties and wanted boundary of that property to be fixed to separate it from the property of the appellant No.1 situated on the further south. Trial court has, though prayer for fixation of boundary was not allowed granted injunction restraining appellant No.1 from trespassing into the property of the respondent as stated above and indicated in Ext.C5, plan. 4. The reason stated by the appellants for condonation of delay is that there were two other suits also tried and disposed of along with O.S.No.321 of 1996 and even after common judgment of the trial court they had talked over the matter to the respondent and others and a compromise was reached. Hence they did not go for appeal. Respondent denied that there was any such compromise. No evidence was adduced by the appellants regarding the alleged compromise. In the above circumstances that learned District Judge refused to condone the delay of 2203 days in filing the appeal. 5. Law of limitation is a statute of peace after such long lapse of time. Finality of the decisions is the object of law of limitation. Before a party can claim indulgence of the court under Section 5 of the Limitation Act (for short, “the Act”) apart from proving “sufficient cause” he has also to show that he was RSA No.285/2010 3 reasonably diligent in prosecuting the proceeding. Existence of “sufficient cause” is a condition precedent for exercise of discretion under Section 5 of the Act. The expression “sufficient cause” is not a question of principle but is a question of fact and hence whether to condone the delay or not is a matter that depends upon the facts and circumstances of each case. John Veet is quoted in Mangu Lal and others v. Kandhai Lal and others ((1886) 8 All.475 at page 483) thus: “Ne autem lites immortales essent, dum litigantes mortales sunt” (Controversies are limited to a fixed period of time, lest they should be immortal while men are mortal) Appellants virtually slept over their right for 2203 days after trial court handed down a verdict which appellants now say was not correct. The reason stated by them for the delay is not proved and was not appealing to the learned District Judge. There was nothing to hold that appellants were prevented by “sufficient cause” from not preferring the appeal within the time prescribed. Hence the question of exercise of discretion did not arise. I do not find any substantial question of law involved in the Second Appeal. RSA No.285/2010 4 6. It is submitted by learned counsel for appellants that respondent has filed a suit for partition and that appellants may be permitted to take up appropriate contentions in that suit. I make it clear that appellants will be entitled to take up all contentions which they are otherwise entitled under the law. Second Appeal is dismissed in limine. I.A.No.697 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks