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2025 Supreme(Online)(KER) 5078
HIGH COURT OF KERALA
M.A. ABDUL HAKHIM, J
LAILA MUHAMMED – Appellant
Versus
MEHAR SAIFE – Respondent
RSA 658/2023
B.DEEPAK KARTHIK BHAVADASAN, P.B.SUBRAMANYAN, SREEHARI R, S.V.BALAKRISHNA IYER (SR.)(B-75), SABU GEORGE(K/000711/1998), MANU VYASAN PETER(K/000652/2013), MEERA P.(K/000191/2019), HAMZA A.V.(K/1588/2022), APARNA M.P.(K/001753/2024)
The court held that negligence and lack of vigilance do not justify condoning a significant delay in filing an appeal.
Headnote:(A) Civil Procedure Code, 1908 - Section 5 - Delay in filing appeal - Application to condone delay of 499 days in filing appeal against dismissal of counterclaim - Applicant's belief in representation by co-defendant and lack of communication due to pandemic cited as reasons for delay - Court found no sufficient reason for delay, noting applicant's negligence and lack of vigilance in monitoring case progress - Application dismissed. (Paras 1-6)
(B) Appeal - Dismissal of appeal follows dismissal of application to condone delay - No sufficient grounds established for condonation of delay. (Paras 6-7)
Facts of the case:
The applicant, a third defendant in a counterclaim, sought to condone a significant delay in appealing against a judgment that dismissed the counterclaim, citing miscommunication and reliance on another defendant. The counterclaim involved partition of property originally belonging to a predecessor in interest.
Findings of Court:
The court found that the applicant failed to demonstrate sufficient reasons for the delay and noted her negligence in monitoring the case.
Issues: The main issues included whether the applicant's reasons for delay were valid and whether the delay could be condoned.
Ratio Decidendi: The court ruled that the applicant's lack of vigilance and reliance on another party did not constitute sufficient grounds for condoning the delay in filing the appeal.
Result: Application to condone delay dismissed; appeal also dismissed.
| Table of Content |
|---|
| 1. application to condone delay (Para 1 , 3) |
| 2. opposition to the application (Para 2) |
| 3. reasons for delay (Para 4 , 5) |
| 4. details of the counterclaim (Para 6) |
| 5. dismissal of appeal (Para 7) |
JUDGMENT
C.M.Appln.No.1 of 2023:
1. This Application is filed to condone the delay of 499 days in filing the appeal. It arises from the judgment and Decree in the Counterclaim in the suit dismissing the Counterclaim. The Trial Court proceeded with the Counterclaim as the suit was dismissed for default. The Appellant was the 3rd defendant in the Counter Claim. The Appeal before the First Appellate Court was filed by the Counter Claim Plaintiffs 1 and 3.
2. The Application is strongly opposed by the fourth respondent/ 2nd defendant by filing the Counter Affidavit.
3. I heard the learned counsel for the applicant and the learned counsel for the fourth respondent.
4. The reasons stated in the affidavit in support of the application th is that the applicant was under the Bonafide belief that the 4 respondent in this appeal was properly conducting the case on her behalf and also protecting her interest in the plaint schedule properties. Later, she was not in communication with 2025:KER:9462 th the 4 respondent on account of the COVID pandemic and hence could not follow up the affairs of the property. The th
4 respondent did not communicate to the applicant that the appeal was dismissed by the Appellate Court. It was only towards the end of the year 2022 that the petitioner realized th that the 4 respondent was not giving any information about the case or regarding her rights in the counterclaim schedule properties and was evading her queries. Then she made enquiries and understood that the judgment and decree in the th Counterclaim were against her and totally in favour of the 4 respondent/2nd defendant. Thereafter, she filed the present appeal, obtaining a certified copy of the judgment and decree.
5. The Application was opposed on the ground that the applicant, who was the 3rd defendant in the Counter Claim, did not file a th nd written statement. The 4 respondent/ 2 defendant in the th Counterclaim alone contested the matter. The 4 respondent resisted the counterclaim only on his own behalf and not on behalf of the applicant. The applicant did not file any appeal 2025:KER:9462 before the First Appellate Court challenging the judgment and decree in the Counterclaim and she was represented before the First Appellate Court by an independent counsel. The delay was only on account of the negligence on the part of the applicant, which could not be condoned.
6. It is seen that the original suit, i.e., O.S.No.8/2009, was dismissed for default, and the Counterclaim was proceeded. There were three plaintiffs and five defendants in the counterclaim. The appellant herein was the third defendant in the counterclaim. The counterclaim was for partition. The plaint schedule property originally belonged to Jameela Beevi, who was the predecessor in interest of the parties to the counterclaim. It is seen that the second defendant alone contested the suit on the strength of Exts.B1 and B2 settlement deeds in his favour. The third defendant did not contest the suit. It is revealed from the appeal that the third defendant was supporting the plaintiffs for partition. In such a case, the second defendant is the rival party against the third defendant. Here also the application to condone delay is objected to by the 2025:KER:9462 second defendant. The fourth respondent/second defendant has denied the averments of the applicant by filing the counter affidavit. It could not be believed that the third defendant had been depending on the second defendant to protect her interest, for properly conducting the case and for getting the updates of the case. It is seen from the judgment of the First Appellate Court that the third defendant had engaged independent counsel for her and the second defendant was contesting the appeal by engaging another counsel. Even after the
