IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 3RD DECEMBER 2009 / 12TH AGRAHAYANA 1931 RSA.NO. 468 OF 2009() ------------------------------- AS.297/2003 OF DISTRICT COURT, THRISSUR OS.763/1999 OF PRL.SUB COURT,THRISSUR .................... APPELLANT/APPELLANT - PLAINTIFF: -------------------------------------------------- SAJAN, S/O.VELAYUDHAN, EDATHARA HOUSE, PEECHI VILLAGE, THRISSUR TALUK & DISTRICT. BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN SRI.P.T.GIRIJAN SMT.USHA NARAYANAN RESPONDENT(S) – RESPONDENTS - DEFENDANTS: ------------------------------------------------------------------- 1. K.K.SAJEEVNA, S/O.KUTTAPPAN, KOZHIPARAMBIL HOUSE, RAISSERY DESOM, KUNNAMKULAM VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT. 2. SUDHEER KUMAR, S/O.VASUDEVAN, KANATTIL HOUSE, VELLANGALLUR DESOM, VADAKKUMKARA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 3. BOBA, S/O.JOSE, CHAKKALAKKAL HOUSE, PALAKKAL DESOM, PALISSERY VILLAGE, THRISSUR TALUK & DISTRICT. 4. KRISHNADAS, S/O.RAMANKUTTY, KALLATHU HOUSE, AYYANTHOLE DESOM & VILLAGE, THRISSUR TALUK & DISTRICT. ADV. SRI.K.JAYAKUMAR FOR R2 SRI.P.B.KRISHNAN FOR R2 SRI.P.SANTHOSH (PODUVAL) FOR R3 SMT.R.RAJITHA FOR R3 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.468 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 3rd day of December, 2009 J U D G M E N T --------------------- Since the learned District Judge has dismissed the appeal consequent to dismissal of the application to condone delay, it is agreed by counsel on both sides that it is not necessary to call for records of the courts below for disposal of this appeal. I have perused the application to condone delay supported by the affidavit and counter affidavit of respondent Nos.2 to 4. 2. This case has a chequered career. It originated by the appellant instituting O.S. No.763 of 1999 in the court of learned Sub Judge, Thrissur for specific performance of an agreement. Appellant claimed that as per the agreement he had with respondent No.1, the latter was bound to receive the sum of Rs.1,00,000/- which the appellant had taken by way of loan together with interest payable thereon and executed a deed of re-conveyance of the property. There was also a prayer for cancellation of the assignment deed executed by respondent No.1 in favour of respondent Nos.2 to 4 in the meantime. Appellant did not comply with the direction for payment of balance court fee and hence the plaint was rejected as per order dated 1.11.2001. Appellant filed I.A. No.4450 of 2002 on 30.10.2002 for R.S.A. NO.468 OF 2009 -: 2 :- review of that order, accompanied by I.A. No.4494 of 2002 for condoning delay in filing the application for review. Both the applications were dismissed as per order dated 29.3.2003. Appellant challenged order dated 1.11.2001 rejecting the plaint for non- payment of balance court fee by way of first appeal in this Court on 11.4.2003. That appeal was returned as per order dated 23.7.2003 directing the appellant to present the same before the District Court concerned. Accordingly the first appeal was presented in the District Court, Thrissur on 30.7.2003 accompanied by I.A.No.1860 of 2003 to condone the delay of 536 days. That application was dismissed and consequently the appeal also was dismissed on 10.10.2003. Appellant challenged dismissal of I.A.No.1860 of 2003 and the consequent dismissal of appeal in this Court in W.P(C) No.25072 of 2004 which was dismissed on 18.8.2006 since the remedy of appellant was to challenge the decree of the first appellate court in A.S. No.297 of 2003. Thereafter appellant filed this Second Appeal on 13.2.2009 accompanied by C.M. Appl. No.353 of 2009 to condone the delay of 1850 days. In the meantime appellant filed O.S. No.981 of 2006 in the court of learned Sub Judge, Thrissur seeking redemption of mortgage over the very same property as if the sale deed executed by him in favour of respondent No.1 created a mortgage. That suit, I R.S.A. NO.468 OF 2009 -: 3 :- am told is still pending. Respondent Nos.2 to 4 are assignees from respondent No.1 and they filed O.S. Nos.2032, 2033 and 2036 of 1999 in the court of learned Munsiff, Thrissur against the appellant and others seeking decree for prohibitory injunction claiming that they are the title holders in possession of the properties referred to therein (which is also the subject matter of the present case) on the strength of the assignment deeds executed by respondent No.1 and thereafter by respondent No.2. In those cases ex parte decrees were passed in favour of respondent Nos.2 to 4 on 31.10.2001. Then it was the turn of appellant. He attempted to get those cases reopened by filing applications to set aside the ex parte decrees as well as to condone delay of 1815 days in filing those applications. Those applications ended in dismissal. 3. Now the question for consideration is whether learned District Judge is legally correct in not condoning the delay of 536 days in filing A.S. No.297 of 2003. Learned counsel for appellant contended that the learned District Judge has not given a liberal construction to the expression “sufficient cause” occurring in Section 5 of the Limitation Act (for short, “the Act”). According to the learned counsel for contesting respondents on the facts and circumstances of the case learned District Judge was justified in dismissing the application. R.S.A. NO.468 OF 2009 -: 4 :- Learned counsel also pointed out that interest of third parties are also involved in this case. It is pointed out by learned counsel that respondent No.1 had mortgaged the property with the Urban Co- operative Bank, Thrissur (for short, “the Bank”) as security for a loan of Rs.10,00,000/- and suppressing the said fact he assigned the property to respondent Nos.2 to 4. When the Bank initiated steps for recovery of the amount due, respondent No.1 refused to join respondent Nos.2 to 4 notwithstanding that they were prepared to discharge the liability of the Bank. Thereon respondent No.3 had to approach this Court by filing W.P(C) No.11517 of 2008. This Court directed the Bank to release the documents pledged by respondent No.1 on executing bond. Learned counsel for respondent Nos.2 to 4 submits that they had to pay Rs.25,00,000/- to the Bank to discharge the liability. Respondent Nos.2 and 3 submits that they have assigned their respective properties either in whole or in part to third parties and thus right of third parties are also involved. Learned counsel submitted that if the delay is condoned it would involve much hardship and inconvenience to respondent Nos.2 to 4 as well as the subsequent assignees under them who are all bona fide purchasers for valid consideration. 4. After hearing counsel on both sides the following R.S.A. NO.468 OF 2009 -: 5 :- substantial question of law is framed for a decision: Whether first appellate court was legally correct in not exercising its discretion to condone the delay on the facts pleaded? 5. Reasons stated by the appellant for condonation of delay in filing the first appeal is that in connection with the death of his uncle on 23.8.2001 who was engaged in business in Orissa he had to urgently go to that place and for quite sometime he had to manage the business of his deceased uncle at that place. During that time he had instructed his brother to enquire about the case (in the trial court) who informed him about the rejection of the plaint on 23.10.2002. Learning about that he came back to Kerala on 29.10.2002. So far as the delay in filing the first appeal is concerned what is stated is that his keeping away at Orissa caused the delay of 363 days, the rest of the delay being due to his pursuing the remedy by way of review of the order rejecting plaint and wrong presentation of the first appeal in this Court which was returned for presentation in the proper court on 23.7.2002. Learned District Judge found that there is no oral or documentary evidence to show that appellant had an uncle engaged R.S.A. NO.468 OF 2009 -: 6 :- in business in Orissa or that he expired as claimed by the appellant and hence he had to be at Orissa for quite some time. In this appeal appellant has produced along with I.A.No.1067 of 2009 a Certificate of Death issued by the Registrar of Births and Deaths, Bargarh District (Orissa) where it is stated that one K.G.Surendran expired at Lupunseng on 23.8.2001. Place of death as well as the permanent address of the deceased are also given in that certificate. Though counsel for respondent Nos.2 to 4 contended that the said Certificate cannot be looked into, I do not find reason to reject it which I find is issued by a competent authority. There is no reason to suspect its genuineness. That justified the explanation of the appellant that he had been to Orissa consequent to the death of his uncle. I do not find reason to disbelieve the version of appellant that he returned to Kerala only on 29.10.2002. The fact that first appeal was presented in this Court and it was returned for presentation before proper court on 23.7.2002 are not disputed. These circumstances in my view proved sufficient cause to condone delay. This Court while condoning the delay in filing the Second Appeal as per order dated 21.8.2009 in C.M.Appl. No.353 of 2009 has made an observation that the learned District Judge ought to have taken a liberal view in considering the application to condone the delay. Having considered the relevant R.S.A. NO.468 OF 2009 -: 7 :- aspects of the matter in the light of the binding authorities which say that a liberal approach has to be given to the expression “sufficient cause” occurring in Sec.5 of the Act I am persuaded to think that the appellant has sufficient cause for condonation of delay and that materials on record do not show that there was lack of diligence on the part of the appellant. In the circumstances I hold that appellant has made out sufficient cause to condone delay. Substantial question of law framed above is answered accordingly. 6. So far as the difficulties expressed by respondent Nos.2 to 4 following their purchase of properties and subsequent assignments are concerned I make it clear that respondent Nos.2 to 4 can place those matters before the appropriate Forum at the appropriate time for consideration. Resultantly, Second Appeal is allowed. The order dismissing I.A.No.1860 of 2003 and the consequent dismissal of A.S. No.297 of 2003 are set aside. I.A. No.1860 of 2003 will stand allowed. Learned District Judge shall pass appropriate orders on the first appeal after hearing the appellant under Order XLI Rule 11 of the Code. Appellant shall appear in the court of learned District Judge, Thrissur on 5.01.2010. It is open to the respondents also to appear in that R.S.A. NO.468 OF 2009 -: 8 :- court on that day so that, in case the appeal is taken on file, the delay in service of notice to them can be avoided. Interlocutory Application No.1068 of 2009 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv R.S.A. NO.468 OF 2009 -: 9 :- THOMAS P.JOSEPH, J. =================== R.S.A. NO.468 OF 2009 =================== J U D G M E N T 3RD DECEMBER, 2009