IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 16TH JANUARY 2008 / 26TH POUSHA 1929 RSA.No. 780 of 2005 --------------------- (AS.227/2004 of ADDL. DISTRICT COURT, PARAVUR OS.159/2001 of MUNSIFF COURT,ALUVA) APPELLANT/APPELLANT/DEFENDANT: ------------------------------------------------------ PAPPU, AGED 75, S/O. KUNJAN, KOMPATHUPARAMBIL, THURUTHU KARA, CHENGAMANADU VILLAGE, ALUVA TALUK. BY ADV. SRI.DINESH MATHEW J.MURICKEN ADV. SRI.P.V.BALAKRISHNAN ADV. SRI.T.K.SHAJAHAN ADV. SRI.P.J.STEPHEN RESPONDENT/RESPONDENT/ PLAINTIFF: ------------------------------------------------------------ APPUKUTTAN, AGED 70, S/O. RAMAN, KOMPATHUPARAMBIL, THURUTH KARA, CHENGAMANAD VILLAGE, ALUVA TALUK. BY ADV. SRI.P.N.RAMAKRISHNAN NAIR ADV. SRI.P.VISWANATHAN THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.1495 OF 2005 IN R.S.A. NO. 780 OF 2005 DISMISSED. 16.01.2008 SD/- K.T. SANKARAN, JUDGE. /TRUE COPY/ P.A. TO JUDGE. K.T. SANKARAN, J. ................................................................................... R.S.A. No. 780 OF 2005 ................................................................................... Dated this the 16th January, 2008 O R D E R The defendant in O.S.No. 159 of 2001 on the file of the court of the Munsiff, Aluva is the appellant in this Second Appeal. The suit was filed by the respondent for fixation of boundary and for mandatory and prohibitory injunction . The trial court decreed the suit as per the judgment and decree dated 31.01.2004. The appellant herein filed A.S.No. 227 of 2004 on the file of the court of the Addl. District Judge, N. Paravur. There was a delay of 183 days in filing the appeal. The court below dismissed the application for condonation of delay, by order dated 16th March 2005 and consequently, the appeal was also dismissed on that day. The Second Appeal is filed challenging the judgment and decree of the Lower Appellate Court . The appellant also challenges the order in I.A.No. 654 of 2004, by which the court below dismissed the application for condonation of delay. The substantial question of law which arises for consideration is the following: “Whether the court below was justified in dismissing the application for condonation of delay ignoring the well settled principles of law and the decision of the Supreme Court on the point” 2. As stated earlier, the trial court passed the judgment on 31.01.2004. The appellant applied for certified copy of the judgment and decree on 06.02.2004. The copy was ready on 30.04.2004 and the same was delivered on 11.05.2004. The appeal was filed on 23.11.2004. There was a delay of 183 days in filing the appeal. R.S.A. No. 780 OF 2005 2 3. The appellant sought to explain the delay by filing an affidavit. In the affidavit, it is stated as follows: “When the Advocate intimate me about the judgment in the case, I went to the Advocate's Office and asked him to prefer appeal when copy was received. The Advocate assured me that he would intimate me when he would receive the copy. When I contacted him further in second week of March 2004 he told me that there would be some delay in obtaining the copy and that he would intimate me definitely when the copy was ready. Believing his words I waited for all these days and made a final enquiry on 18-10-2004 and came to know that the Advocate had intimate me the fact he had received the copy by a Post card. But I have not received the post card so far. Thus occurred the delay. There is no willful laches or negligence on my part in preferring this appeal. In fact I have been diligently prosecuting the case and there is every chance for me to get the appeal decided in my favour.” 4. In the application for condonation of delay, the son of the appellant was examined as P.W.1. No oral evidence was adduced by the respondent/plaintiff. P.W.1 stated that the appellant was aged 75 years and that he was ailing. The appellant was suffering from Asthma and Rheumatic complaint. It is stated by P.W.1 that in October, 2004, the appellant contacted the counsel. Even after receipt of the certified copy of the judgment and decree, the appeal could be filed only after several weeks as the appellant was laid up, it is stated . Such a case is not put forward in the affidavit accompanying the application for condonation of delay. The medical certificate issued by an Ayurvedic doctor was produced to show that the appellant was laid up due to rheumatism in October, 2004. The court below did not rely on the medical certificate since P.W.1 stated that the truth or otherwise of the certificate would be known to the 'vaidhyan' as well as his father. The court below dismissed the application for R.S.A. No. 780 OF 2005 3 condonation of delay on the ground that the delay from the date of receipt of copy of the judgment to the date of filing of the appeal was not explained in the affidavit. The version of P.W.1 in evidence on that aspect was not accepted by the court below, holding that the such a case was not put forward in the affidavit. The court below also noticed that execution proceedings were initiated by the decree holder and only thereafter, the appeal was filed. It was held that the appeal was filed belatedly to protract the proceedings and to delay the fixation of boundary. 5. It is true that the delay from the date of receipt of certified copy of the judgment to the date of filing the appeal is not explained in the affidavit. Though an explanation was offered by P.W.1 in this regard, those facts are not stated in the affidavit. The appellant is aged more than 75 years. It is stated by the appellant that he requested the lawyer to get the certified copy of the judgment and decree and an application for certified copy was filed. The case of the appellant is that the counsel stated that the appellant would be duly intimated after receipt of the certified copy. Though it is stated that a letter was sent by the counsel to the appellant, the appellant has not received the letter. He met the counsel thereafter, probably when notice was received in the Execution Petition. From the admitted and proved facts, it can be seen that the appellant was not very much diligent in prosecuting the matter. In the nature of the decree passed, the appellant should have filed the appeal immediately after receipt of the certified copy . At the same time, the reasons stated by the appellant for the delay up to 22.11.2004 is satisfactory. The court below has also not disbelieved the case put forward by the appellant. There is no finding by the court below as to whether the facts stated by the appellant in this affidavit is true or false. The only reason for dismissing the application seems to be that the appellant failed to explain R.S.A. No. 780 OF 2005 4 the delay for the period from 18.10.2004, the date on which the appellant met his counsel to 23.11.2004, the date of filing the appeal.) 6. The Honourable Supreme Court in Collector, Land Acquisition , Anantnag and another vs. Mst. Katiji and others (AIR 1987 SUPREME COURT 1353 ) held as follows : 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3.''Every day's delay must be explained'' does not mean that a pedantic approach should be made. Why not every hour's delay,every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5.There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. This decision of the Supreme Court was followed in several later decisions of the Supreme Court. By condoning the delay, the only consequence would be that the appeal would be disposed of on the merits. The prejudice that would be caused to the R.S.A. No. 780 OF 2005 5 appellant by not entertaining the appeal would be greater than the prejudice that would be caused to the respondent by condoning the delay. 7. In the facts and circumstances of the case , I am of the view that the court below should have condoned the delay on terms . The delay can be condoned on condition that the appellant pays a sum of Rs.3,500/- (Rupees three thousand and five hundred only) as cost to the respondent or deposits the said amount before the court below for payment to the respondent, within a period of one month from today. 8. In the result, the Second Appeal is allowed and the judgment and decree of the court below are set aside. I.A.No. 654 of 2004 in A.S.No. 227 of 2004 is allowed on condition that the appellant shall pay, as cost, a sum of Rs. 3500/- to the respondent or deposit the said amount before the court below for payment to the respondent within a period of one month from today. If the appellant fails to pay or to deposit the cost, the Second Appeal shall stand dismissed. If the appellant pays or deposits the cost as aforesaid, the lower appellate court shall dispose of the appeal on the merits, as expeditiously as possible and at any rate, within a period of six months from the date of deposit of the cost. The Registry shall send back the records immediately. K.T. SANKARAN, JUDGE. lk