IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 1ST OCTOBER 2009 / 9TH ASWINA 1931 FAO.No. 237 of 2009() --------------------- AGAINST THE ORDER DATED 19/12/2008 IN IA 3842/08 IA 3843/08 IN LAR.83/1988 of ADDL.SUB COURT,KOLLAM .................... APPELLANT(S): CLAIMANT: ----------------------------- SULAIKHA BEEVI, SAJIDA MANZIL, VADAKKAN MYNAGAPPALLY, MYNAGAPPALLY VILLAGE, KUNNATHOOR TALUK, KOLLAM DISTRICT. BY ADV. SRI.K.JAYARAJ RESPONDENT(S): --------------- KERALA STATE, REPRESENTED BY DISTRICT COLLECTOR, KOLLAM. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 01/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = F.A.O. NO. 237 OF 2009 = = = = = = = = = = = = = = = Dated this the 1st day of October, 2009. J U D G M E N T This is an appeal preferred against the order in I.A.3842/08 in I.A.3843/08 in LAR 83/88 on the file of the Additional Sub Court, Kollam. This is a classical case which reveals that a party can afford to be negligent for more than 20 years and then approach the Court with the prayer to condone the delay and hear the matter. The Hon'ble Supreme Court in very many decisions has stated that it is not the length of time alone but it is the cause as well that has to be taken into consideration. It is but true that under the provisions of the Land Acquisition Act the Land Acquisition Court is incompetent to dismiss a case for default. Though it is the averment I have perused the award produced in this case and it is not a dismissal for default but an award on merits passed by the Land Acquisition Court and negatived the claim for enhancement for lack of evidence. So really it is an award which could have been challenged in F.A.O. 237 OF 2009 -:2:- appeal by the party at the appropriate time. I am not going into the technical aspect of an entertainment of an application under Or.9 Rule 13 in this case in the light of the decision of the Division Bench of this Court in 2008 (1) KLT 206 Shahida Beevi v. State of Kerala wherein this Court held that the civil Court is not competent to dismiss a reference for default. It further held remedy open to claimant if in any case an application is dismissed for default or disposed of otherwise than on merits, the claimant can file a petition u/s 151 simplicitor or under S.151 r/w Order 9 Rule 9 before reference Court itself or file an appeal under 54 of the Land Acquisition Act. So in the light of this decision I am not inclined to dismiss the application on a technical ground but has to consider it on merits and dispose it off. 2. Now the larger question that arises for determination is the condonation of delay of 7350 days in filing the restoration application. The reasons alleged are that the claimant was abroad and an advocate was entrusted to conduct the case but he did not inform him the details of the case in time. A relative who was entrusted with the conduct of the case died in the year 1992 and now it is F.A.O. 237 OF 2009 -:3:- averred that when the petitioner came back understood that the advocate also died. A person who has gone abroad certainly would have come to India on large number of occasions during the last 20 years. Otherwise there must be some evidence produced to show that he has not come to India at all during the last 20 years. It is also to be stated that nobody was examined even to prove the reasons for the condonation of delay. The principle applied just like in setting aside the exparte decrees etc. is that it is a larger matter of wise discretion to be exercised by the Court bearing in mind the wholesome principle that the right of a party to be heard should be negatived only if there is gross negligence or gross carelessness. What else can be stated about a party who had entrusted a case to a lawyer about 20 years back and did not even attempted to understand the outcome of the case for 20 years. This can be only classified as gross negligence and grave misconduct in prosecuting the case. Suppose Courts start to condone the delay of 20 years without any reason then the whole functioning of the system of law may get into difficulty and that is why it has been held that discretionary power vested with the Court has to be F.A.O. 237 OF 2009 -:4:- judicially exercised in order to render justice to the party. Mere sympathy of the Court shall not be a ground to deprive a winning party and put him in a loosing position. Therefore I do not find any ground at all to condone the delay in the matter and the decision taken by the Court below is perfectly in order and therefore the dismissal of the petition to condone the delay as well as the restoration application is only to be sustained and I do so. Therefore the FAO is dismissed. M.N. KRISHNAN, JUDGE. ul/-