IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 16TH NOVEMBER 2009 / 25TH KARTHIKA 1931 RSA.No. 1033 of 2009(F) ---------------------- AS.403/2008 of DISTRICT COURT, PALAKKAD OS.336/2005 of ADDL.MUNSIFF COURT, PALAKKAD .................... PETITIONERS/APPELLANTS/DEFENDANTS: -------------------------------------- 1. STATE OF KERALA, REP. BY THE DISTRICT, COLLECTOR, PALAKKAD, 2. THE TAHSILDAR, PALAKKAD TALUK, PALAKKAD. 3. RE.SURVEY SUPERINTENDENT, OTTAPALAM. BY GOVERNMENT PLEADER: L G SURESH BABU RESPONDENT/RESPONDENT/PLAINTIFF: --------------------------------------- K. ARAVINDAKSHAN PILLAI, AGED 46 YEARS, S/O. KRISHNA PILLAI, THOTTAPURA, MALAMPUZHA I VILLAGE, PALAKKAD. ADV. SRI.JACOB SEBASTIAN FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.1033 of 2009 F --------------------------------------- Dated this 16th day of November, 2009 JUDGMENT Admit. 2. The following substantial question of law is framed for a decision; Whether, the first appellate court on the facts and circumstances of the case was legally correct in refusing to condone the delay?. 3. Respondent appears through counsel. 4. Since the first appellate court has disposed of the appeal consequent to the dismissal of the application to condone the delay and the only question raised in this second appeal is as to legality of the dismissal of the application to condone the delay, it is not necessary to call for the records of the case. 5. The second appeal arises from judgment and decree of learned District Judge, Palakkad in A.S.No.403 of 2008. That appeal arose from judgment and decree of learned Additional Munsiff, Palakkad in O.S.No.336 of 2005 granting decree in favour of respondent declaring his title and possession of the 29 cents described in the plaint schedule and directing appellants to receive revenue for the said property. The appeal was presented along with I.A.No.1983 of 2008 to condone the delay of 477 days. In the affidavit in support of R.S.A.No.1033 of 2009 2 the application (sworn by the Tahasildar concerned) it is stated that the file was misplaced when his office was shifted. The application was opposed by the respondent contending that after the judgment and decree of the trial court he approached the revenue officials with a request to receive tax for the suit property, that was not accepted and after he filed execution petition on 17-06-2008 and notice thereon was served on appellant, appellant thought of preferring the appeal. It is also contended that due to the act of the appellant, respondent was not able to construct the building in the suit property. Learned District Judge found that there is no justifiable reason stated by the appellant to condone the delay, dismissed I.A.No.1983 of 2008 and consequently, the appeal. It is contended by learned Government Pleader appearing for the appellant that the first appellate court was not right in dismissing the application to condone the delay. Learned counsel for respondent supported the order, judgment and decree of learned District Judge. 4. The dispute in this case is concerning ownership and possession of a plot of land measuring 29 cents. Respondent claimed that he purchased the property as per assignment deed No.2223/2001 and on his approaching the village officer to effect mutation he was told that there was some error in the village records as if the extent of the property as per those records is only 9.5cents and the rest of the R.S.A.No.1033 of 2009 3 property is puramboke land. The revenue officials took such a stand in view of resurvey of the properties. It is thereon that respondent instituted the suit contending that entire 29 cents is private property which he acquired as per assignment deed No.2223/2001. Suit was resisted by the appellant on various grounds including that as per the resurvey respondent has only 9.5 cents in R.S.No.175/13 and the rest is puramboke land where the panchayath office, quarters of PWD and other government offices are functioning. Learned Munsiff was not inclined to accept that contention of appellant and granted decree in favour of the respondent. It is from that decree that appellant preferred appeal in the first appellate court. 5. I have gone through the copy of I.A.No.1983 of 2008 and the affidavit (sworn by the Tahasildar) in support of that application. It is true that appeal was presented before the appellate court with a delay of 477 days and the reason stated is that the file happened to be misplaced at the time the office of the Tahasildar concerned was shifted. The question for consideration is whether on the facts and circumstances of the case the delay could be condoned. I do not forget that the Limitation Act is a statute of repose and peace and that stale claims shall not be allowed to come up after vested right has accrued to the opposite party. At the same time, the principle laid down in the binding authorities on the point say that a liberal approach R.S.A.No.1033 of 2009 4 has to be made in the mater of condonation of delay so as to advance the case of justice, rule being that the case has to be decided on its merit and not on technicalities. Having gone through the affidavit and considering the facts and circumstances of the case, I do not find reason to think that the delay was willfully caused. For, appellant did not stand to gain by such delay. There is no reason why I should approach the explanation offered by the deponent with a distrust. Possibility of the file being misplaced while the office was shifted cannot be ruled out. In the circumstance, I am satisfied that the first appellate court ought to have condoned the delay and given appellant an opportunity to challenge judgment and decree on merit. In view of my above finding impugned order on I.A.No.1983 of 2008 and the consequent dismissal of the appeal are liable to be set aside and, I do so. 6. Learned counsel for respondent submitted that the suit was filed in the year 2005, title and possession of the respondent has been found by the trial court and that in view of the mistake that occurred in the resurvey records wherein extent of property belonging to the respondent is stated as 9.5 cents, respondent is not able to construct building in the suit property. The request of learned counsel is to direct learned District Judge to dispose of the appeal within a time frame to be fixed by this Court. I do not consider it necessary or R.S.A.No.1033 of 2009 5 proper to fix a time frame for disposal of the appeal without understanding the volume of work of the Court concerned. However, considering the anxiety expressed by the learned counsel on behalf of respondent, I direct learned District Judge to expedite the disposal of the appeal in case it is admitted after hearing under Order 41 Rule 11 of the Code of Civil Procedure. The substantial question of law raised in the second appeal is answered accordingly. Resultantly the appeal is allowed. The order under challenge on I.A.No.1983 of 2008 and the consequent dismissal of A.S.No.403 of 2008 are set aside. I.A.No.1983 of 2008 will stand allowed. Case is sent back to the court of learned District Judge, Palakkad for hearing under Order 41 Rule 11 of the Code of Civil Procedure and to pass appropriate orders thereon. In case the appeal is admitted as above stated, learned District Judge shall expedite the disposal of the appeal. Appellant shall appear in the court of learned District Judge on 16-12- 2009. It is open to the respondent also to appear before the learned District Judge that day so that, delay in service of notice to the respondent can be avoided in case the appeal is admitted to the file. THOMAS P JOSEPH, JUDGE Sbna/