IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

WEDNESDAY, THE 14

TH

DAY OF FEBRUARY 2024 / 25TH MAGHA, 1945

RSA NO. 144 OF 2023

AGAINST THE ORDER IN I.A.NO.1/2021 IN AS NO.101/2021 AND THE DECREE

AND JUDGMENT IN AS 101/2021 OF ADDITIONAL DISTRICT COURT-V, PALAKKAD

AGAINST THE DECREE AND JUDGMENT DATED 21.12.2017 IN OS 336/2005 OF

ADDITIONAL MUNSIFF COURT, PALAKKAD

APPELLANTS/APPELLANTS/DEFENDANTS:

1 THE STATE OF KERALA

REPRESENTED BY THE DISTRICT COLLECTOR

PALAKKAD, PIN - 678001

2 THE TAHSILDAR

TALUK OFFICE, PALAKKAD,

PIN - 678001

3 THE RESURVEY SUPERINTENDENT

OTTAPPALAM, PIN - 679101

BY ADV SRI.DENNY K DEVASSY, SR.GOVERNMENT PLEADER

RESPONDENT/RESPONDENT/PLAINTIFF:

K ARAVINDAKSHAN PILLAI

AGED 61 YEARS

S/O KRISHNA PILLAI , THOTTAPURA ,

MALAMPUZHA-1 VILLAGE , PALAKKAD, PIN - 678651

BY ADVS.

P.B.SUBRAMANYAN

P.B.KRISHNAN(K/1193/1994)

SABU GEORGE(K/000711/1998)

MANU VYASAN PETER(K/000652/2013)

THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON

07.02.2024, THE COURT ON 14.02.2024 DELIVERED THE FOLLOWING:

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RSA NO.144 OF 2023

2

CR

JUDGMENT

Dated this the 14

th

day of February, 2024

The State of Kerala represented by the District

Collector, Palakkad and others are the appellants, who are

the defendants in O.S.No.336/2005 on the files of the

Additional Munsiff's Court, Palakkad, in this regular second

appeal filed under Section 100 read with Order XLII Rule 1 of

the Code of Civil Procedure, 1908. The sole respondent

herein is the original plaintiff.

2.Heard the learned Government Pleader appearing

for the appellants and the learned Senior Counsel appearing

for the respondent in detail.

3.I shall refer the parties in this regular second

appeal as 'plaintiff' and 'defendants' for convenience.

4.On hearing both sides, the following substantial

questions of law raised and the appeal is admitted:

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1. Whether the appellants herein established

'sufficient cause' to condone delay in filing

A.S.No.101/2021 before the District Court,

Palakkad, as contended in I.A.No.1/2021 in

the said appeal, within the mandate of

Section 5 of the Limitation Act ?

2. While considering the impact of Section 5 of

the Limitation Act, any concession or leeway

to be provided to the State where the laches

of the officials to secure unholy gains are

apparent?

5.The learned Government Pleader, appearing for

the State, would submit that admittedly, the first appeal was

filed along with I.A.No.1/2021 to condone delay of 1427 days.

According to the learned Government Pleader, the reasons

for the delay are illustrated in the affidavit in support of the

petition. It is pointed out that the present appellant, Tahsildar

(Land Records), Palakkad, took charge on 18.06.2020 and

there occurred some delay and the delay was not willful and

deliberate, and the same was the result of the incorrect

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appreciation of facts from the records made available by the

officials concerned. Accordingly, the learned Government

Pleader pressed for remanding the matter before the first

appellate court, after condoning the delay, by allowing

I.A.No.1/2021, for hearing the appeal on merits.

6.The learned Senior counsel appearing for the

plaintiff vehemently opposed condonation of delay as well as

any order upsetting the finding of the first appellate court as

well as the trial court in this appeal, mainly canvassing the

lethargy throughout the proceedings on the part of the

appellants by pointing out sequence of events starting from

28.07.2007 to 10.01.2023. The prime argument at the

instance of the learned Senior counsel is that I.A.No.1/2021

had been filed as on 15.12.2021 and about 10 months

before, exactly on 24.02.2021, the second appellant filed

counter affidavit in E.P.No.143/2018 vide E.A.No.68/2021

and also filed petition to re-call the warrant issued against

him by the execution court while proceeding to execute the

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decree in E.P.No.143/2018.

7.When the recent decision of the Apex Court

granting leeway to the Government in the matter of delay is

pointed out, the learned Senior counsel bona fidely placed

the said decision in Sheo Raj Singh (Deceased) through

legal representatives and Others v. Union of India and

Another, reported in (2023) 10 SCC 531 and referred the

earlier decisions considered by the Apex Court therein, with

particular mention to the decision in University of Delhi v.

Union of India, reported in (2020) 13 SCC 745 and also the

decision in State of Madhya Pradesh and Others v.

Bherulal, reported in (2020) 10 SCC 654.

8.On perusal of the above decision, the Apex Court

considered challenge against condonation of delay of 479

days in filing an appeal against a reference under Section 18

of the Land Acquisition Act, 1894, at the instance of the

Union of India. In the said case, the High Court condoned the

delay and the same was challenged before the Apex Court.

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The Apex Court justified condonation of delay after referring

the three Bench decision in University of Delhi's case

(supra) and set out principles governing consideration of the

expression ‘sufficient cause’ and in paragraph 35, the

principles have been summarised as under:

“35.1. The law of limitation was founded on

public policy, and that some lapse on the part of a

litigant, by itself, would not be sufficient to deny

condonation of delay as the same could cause

miscarriage of justice.

35.2. The expression "sufficient cauşe" is elastic

enough for courts to do substantial justice.

Further, when substantial justice and technical

considerations are pitted against one another, the

former would prevail.

35.3. It is upon the courts to consider the

sufficiency of cause shown for the delay, and the

length of delay is not always decisive while

exercising discretion in such matters if the delay is

properly explained. Further, the merits of a claim

were also to be considered when deciding such

applications for condonation of delay.

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35.4. Further, a distinction should be drawn

between inordinate unexplained delay and

explained delay, where in the present case, the

first respondent had sufficiently explained the

delay on account of negligence on part of the

government functionaries and the government

counsel on record before the Reference Court.

35.5. The officer responsible for the negligence

would be liable to suffer and not public interest

through the State. The High Court felt inclined to

take a pragmatic view since the negligence therein

did not border on callousness.”

9.It was observed in paragraph 41 of the decision in

Sheo Raj's case (supra) as under:

“As the aforementioned judgments have shown,

such an exercise of discretion does, at times, call

for a liberal and justice-oriented approach by the

courts, where certain leeway could be provided to

the State. The hidden forces that are at work in

preventing an appeal by the State being

presented within the prescribed period of limitation

so as not to allow a higher court to pronounce

upon the legality and validity of an order of a lower

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court and thereby secure unholy gains, can hardly

be ignored. Impediments in the working of the

grand scheme of governmental functions have to

be removed by taking a pragmatic view on

balancing of the competing interests.”

10.The learned Senior counsel has given much

emphasis to paragraph 5 of the decision in State of Madhya

Pradesh and Others v. Bherulal's case (supra) and the

same as under:

“5. A preposterous proposition is sought to

be propounded that if there is some merit in the

case, the period of delay is to be given a go-by. If

a case is good on merits, it will succeed in any

case. It is really a bar of limitation which can even

shut out good cases. This does not, of course,

take away the jurisdiction of the Court in an

appropriate case to condone the delay.”

11.Whereas it is submitted by the learned

Government Pleader that, on merits, the appellants have a

good case to argue before the first appellate court and

meritorious disposal of the first appeal may be facilitated by

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allowing the delay condonation petition and remanding the

matter before the first appellate court. The learned

Government Pleader also placed a Division Bench decision

of this Court in Abdul Khader v. Rapheal T.George,

reported in 2023 KHC 9094, where this Court dealt with

matters to be considered under Section 5 of the Limitation

Act and held as under:

“It is well settled that the Law of Limitation is

founded on public policy to ensure that the

parties to a litigation do not resort to dilatory

tactics and seek legal remedy without delay. In

an application filed under S.5 of the Limitation

Act, the court has to condone the delay if

sufficient cause is shown. Adopting a liberal

approach in condoning the delay is one of the

guiding principles, but such liberal approach

cannot be equated with a licence to approach

the court-at-will disregarding the time limit fixed

by the relevant statute. The acts of negligence

or inaction on the part of a litigant do not

constitute sufficient cause for condonation of

delay. Therefore, in the matter of condonation

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of delay, sufficient cause is required to be

shown, thereby explaining the sequence of

events and the circumstances that led to the

delay.”

12.Insofar as the question as to condonation of delay

by resorting to Section 5 of the Limitation Act is concerned,

delay can be condoned if 'sufficient cause' is shown and the

approach of the courts should be liberal guided by legal

principles. At the same time, dilatory tactics, if borne out from

materials, shall be treated sternly and liberal approach

cannot be extended to those persons. However, it is noticed

that the State and its instrumentalities used to file litigations,

including appeals, second appeals, revisions, etc., with

prayer to condone delay/long delay and in almost all the

cases of the said nature, except a few, reading between the

lines, the hands of the hidden forces, who had worked in

preventing timely filing of litigations, could be decipherable.

There may be deliberate or intentional omissions so as to go

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in hands with the opposite parties with ulterior motives. The

same practically would become detrimental and causing loss

to public property and public money. So, if delay is sought to

be condoned by the State and its instrumentalities, wherein

hidden forces and materials of such nature are apparent, in

order to prevent timely filing of litigations, the same also to be

taken note of, as held by the Apex Court in Sheo Raj’s case

(supra). Therefore, at times when the materials would show

that hidden forces in the form of officials behind the curtain

meddled in not filing the litigations within time or without

much delay, as part of liberal and justice-oriented approach

by the courts, some sort of leeway or concession could be

provided to the State, in order to protect the interest of the

public at large and to avoid unlawful enrichment by the

opposite side.

13.The learned Senior counsel for the plaintiff has

given much emphasis to the Apex Court decision in State of

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Madhya Pradesh and Others V. Bherulal (supra) to contend

that if there is merit in the case, bar of limitation is to be given

a go-by, and when the case lacks merit, the bar of limitation

is to be shut out.

14.However, in State of Madhya Pradesh and Others

V. Bherulal (supra), though the Apex Court observed so, it was

held that the same did not, of course, take away the jurisdiction

of the court in an appropriate case to condone the delay.

Further, the said decision in no way laid a ratio that in cases

having merits, condonation of delay is either mandatory or in

deviation of the statutory sanction under Section 5 of the

Limitation Act.

15.The learned Senior counsel argued a little on the

merits of the matter and the ordeals suffered by the plaintiff

starting from 2005 onwards to address his grievance, wherein

the lethargic attitude on the part of the defendants stands in the

way of having a quietus to the lis.

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16.Whereas it is submitted by the learned

Government Pleader that in this case, the identification of

property was done at the instance of the municipal surveyor

and the property was not properly identified with the old

survey number. Instead, the property was identified on the

basis of the re-survey number and in the re-survey, there

was mistake. Therefore, the first appeal requires

consideration on merits by the first appellate court, for which

the delay is to be condoned in the case at hand where delay

on the part of the officials in taking follow up steps is cited as

the reason for condonation of delay.

17.The inevitable conclusion of the above discussion

is that since the State is the appellant and the delay is the

outcome of deficiency and derelictions on the part of the

officials in acting in time, some concession or leeway to be

given to the Government. Accordingly, the delay petition

I.A.No.1/2021 stands allowed, subject to payment of cost of

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Rs.5,000/- (Rupees five thousand only) to the plaintiff within

a period of four weeks by the defendants from the date of

appearance of the parties before the first appellate court and

accordingly, the order in I.A.No.1/2021 stands set aside and

I.A.No.1/2021 stands allowed. Consequently, dismissal of the

first appeal also stands set aside.

18.In the result, this regular second appeal stands

allowed and the matter remitted back to the first appellate

court for hearing the appeal on merits, subject to payment of

cost, as ordered herein above.

19.The first appellate court is directed to hear and

dispose of the appeal within a period of one month from the

date of payment of cost, if the cost is paid as directed and on

failure to pay the cost, the delay petition I.A.No.1/2021 will

stand dismissed. If so, the dismissal of the first appeal by the

first appellate court also will stand revived.

20.Before parting, as an addendum, this Court is

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inclined to look into the unfortunate consequences of delay

on the part of the Sate Officials in conducting the litigations

timely and properly. It is shocking to note that there is

callous negligence or lackadaisical attitude on the part of the

officials of the Government to conduct litigations, timely and

properly, to protect the interest of the State, in fact, the

property and money of the public at large, though they are

duty bound to be vigilant in this regard. Invariably, when

State is a party, the other party would succeed in the

litigations mainly because of the laches on the part of the

officials, though on merits State has good reason to win the

cases. Such instances noted with extreme displeasure,

utmost anxiety and seriousness and there should be some

effective mechanism to realize the loss caused to the

Government due to inaction and dereliction by the officials.

Therefore, the appropriate Governments are hereby

requested to consider enactment of an exhaustive legislation

to deal with this menace to avoid losing government property

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and money/ public property and money due to the lethargy

on the part of the officials, without much delay, adverting to

the interest of the public at large.

21.The parties are directed to appear before the first

appellate court on 26.02.2024.

22.All interlocutory orders stand vacated and all

interlocutory applications pending in this regular second

appeal stand dismissed.

Registry is directed to forward a copy of this judgment

to the trial court and the first appellate court for information

and compliance.

Registry is also directed to forward copies of this

judgment to the Law Secretary to the Union of India and the

Chief Secretary, State of Kerala for information and further

action, if any.

Sd/-

A. BADHARUDEEN

JUDGE

nkr

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APPENDIX OF RSA 144/2023

PETITIONER ANNEXURES

Annexure1 ANNEXURE A1-DELAY CONDONATION

PETITION AND AFFIDAVIT FILED IN AS

NO. 101/2021

2024/KER/10965