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2023 Supreme(Online)(KER) 677
HIGH COURT OF KERALA
A. BADHARUDEEN, J
MEETHALE PUTHALATH NAJMA – Appellant
Versus
PUTHALATH AHAMMAD HAJI – Respondent
RSA 831/2021
Important Points
Subject
Civil Law - Appeals and Limitation
Act Referred
Headnote
Condonation - Appeal Delay - Limitation Act, 1963 - Sections 5 - The court emphasized that sufficient cause is crucial for condoning delay under Section 5 of the Limitation Act. It stressed a strict approach against dilatory tactics and the necessity for valid explanations when delays are excessive.
Fact of the Case:
The plaintiff sued the defendant for Rs.6,00,000 paid in advance for a property sale agreement, which the defendant failed to honor despite receiving the full payment. The defendant raised a defense involving an oral agreement and alleged negligence by the plaintiff, leading to a protracted legal battle over appeal delays.
Finding of the Court:
The court found no sufficient cause to condone the defendant's 634-day delay in appealing, citing lack of credible medical evidence and previous dilatory behavior, ultimately concluding that the defendant sought to avoid the suit on its merits.
Issues: Whether the dismissal of the petition to condone the delay in filing the appeal was legal and proper.
Ratio Decidendi: The court ruled that the absence of sufficient cause for the significant delay, alongside the defendant's history of dilatory tactics, justified the dismissal of the appeal. It reiterated that the courts should be vigilant against frivolous dilatory maneuvers.
Final Decision: The regular second appeal is dismissed.
SANTHARAM P, REKHA ARAVIND, P.G. GOKULNATH, P.B. KRISHNAN, P.B. SUBRAMANYAN, SABU GEORGE, MANU VYASAN PETER, B.ANUSREE
JUDGMENT
Dated this the 20th day of December, 2023 This regular second appeal has been filed under order XLII Rule 1 read with Section 100 of the Code of Civil Procedure (“CPC” hereinafter) challenging the decree and judgment in A.S. No.14 of 2021 dated 28.10.2021 on the files of the Court of the Subordinate Judge, Vatakara, arose from decree and judgment in O.S. No.223 of 2016 dated 26.07.2019 on the files of the Court of the Munsiff, Nadapuram. The appellant herein is the defendant and the respondent is the plaintiff in O.S. No. 223 of 2016.
2. Heard the learned counsel for the appellant as well as the learned counsel appearing for the respondent in detail.
3. The parties in this appeal will be referred as plaintiff and defendant relegating their status before the trial court.
4. At the time of admission, my learned predecessor, as per order dated 08.08.2022 admitted this second appeal by formulating the following substantial question of law:
(a) Whether the dismissal of the petition to condone the delay in filing the appeal is legal and proper?
5. Summarizing the controversy involved in this case, the suit was filed by the plaintiff seeking return of advance money on the strength of an agreement dated 02.04.2015 whereby the defendant agreed to convey the plaint schedule property having an extent of two cents in favour of the plaintiff for a total sale consideration of Rs.6,00,000/-, out of which Rs.2,00,000/- was paid as advance and the same was recorded in the agreement itself. For the balance amount, the plaintiff issued cheque dated 22.04.2015 for Rs.4,00,000/- and the same was encashed by the defendant. Even though the defendant received the entire amount of Rs.6,00,000/-, the defendant failed to execute the sale deed. It is in this context, the plaintiff filed the suit for getting back Rs.6,00,000/- paid in tune with the agreement.
6. The defendant filed written statement denying execution of the sale agreement in writing and contended that there was an oral agreement to sell the property having an extent of three cents for an amount of Rs.15,00,000/-. The further contention raised by the defendant was that the plaintiff failed to arrange Rs.4,00,000/- as agreed and accordingly, he was prepared to issue post dated cheque for the said amount and on accepting the cheque and Rs.11,00,000/- as cash, the defendant executed document in respect of three cents of property in favour of the plaintiff on 02.04.2015. Later the cheque also was encashed.
7. It is evident from the trial court judgment that the case was listed for trial on 03.07.2018 after raising appropriate issues. The defendant did not turn up on that day. Hence, the suit was decreed as ex-parte on 09.07.2018. Later, the defendant filed RPIA No.184/2019 to set aside the the ex-parte decree along with a petition to condone delay of 44 days. The petition stood allowed and on 24.06.2019 the suit was restored to file. Again it was listed on 04.07.2019. On that day, the defendant reported that there was chance of settlement and sought adjournment for two weeks and the case stood adjourned to 16.07.2019. On that date, the defendant did not turn up and again ex-parte decree was passed.
8. Later, the defendant filed two petitions to set aside ex-parte decree dated 16.07.2019 along with petition to condone delay of 44 days. Both those petitions were dismissed on 09.01.2020.
9. After dismissal of the above petitions, A.S.
No.14/2021 was filed before the Court of the Subordinate Judge, Vadakara along with I.A. No.1/2021 to condone delay of 634 days in filing the appeal. The reason stated by the defendant to condone long delay of 634 days is medication for disc prolapse.
10. The plaintiff filed objection and highlighted the dilatory tactics played by the defendant.
11. The learned Sub Judge while dismissing the petition for condonation of delay, in paragraph No.4 of the order in I.A. No.1/2021 dated 28.10.2021, observed as under:
The above appeal is against the decree for money. Approach
