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Judgment
The regular second appeal is filed against the rejection of the first appeal filed consequent to the dismissal of a delay condonation petition.
The respondent Nos.1 and 2 herein filed O.S. No.563 of 2015 on the file of the Munsiff Court, Thalassery, for a mandatory injunction alleging that the defendants have no right over the plaint 'C' schedule property or to reduce the width of the same. It is also alleged that the defendants had constructed a compound wall in the 'C' schedule property. Based on the above averments, the suit for mandatory injunction was filed, which was decreed on 24.03.2022. A.S. No.33 of 2023 was filed along with I.A. No.2 of 2023 seeking to condone the delay of 509 days in filing the appeal.
The substantial questions of law that arise for consideration in the above case are as follows:-
“ii) Whether the order dated 04/12/2024 passed in 1.A.N0.2/2023 in A.S.N0.33/2023 of the court of the Principal Subordinate Judge, Thalassery, dismissing the application to condone the delay of 509 days in filing the appeal is legally sustainable, especially when the reasons stated in the application to condone the delay is the age related health reasons of the appellants therein and further the 2nd appellant before the lower appellate court has passed away on 04/01/2025, immediately after the passing of the impugned Order, Judgment and Decree dated 04/12/2024 by the lower appellate court.?
iii) Whether the lower Appellate Court was legally justified in not following the binding and authoritative principles of law as laid down by the Hon'ble Supreme Court of India as well as this Hon'ble Court touching the issue regarding the condonation of delay in filing the appeals?”
The appellants, who are aged 75 and 84, respectively, contended that due to various old-age-related ailments, including their physical condition, they could not make arrangements for filing the appeal in time or contact the counsel to give necessary instructions to file the appeal on time.
The respondents had opposed the petition contending that the appellants had appeared in E.P. No.170 of 2022 through counsel, and therefore, they had knowledge about the decree at that stage itself, but the appeal was filed only on 15.09.2023. It is also alleged that initially in the suit, the defendants were set ex parte. The First Appellate Court found that a 509-day delay is an inordinate delay and, therefore, a liberal approach cannot be taken, and accordingly, dismissed the application and, consequently, the appeal itself.
The learned counsel for the appellants submits that after the disposal of the appeal, the 2nd appellant died, and the legal heirs are on record in the second appeal, and also argued that the appellants did not get an opportunity to contest the case on merits which, in the circumstances, should have been considered all the more so when the reason put forth was the ailments due to old age, including physical disabilities. The learned counsel for the respondents opposed the contention and argued that even in the suit, the appellants were not diligently prosecuting the same. It is also argued that since the appellants entered appearance in the execution proceedings, they should have known about the judgment and decree in time.
Heard the learned counsel for the parties and perused the records.
The reason put forth in the instant case is illness due to old age, though the medical records as such were not produced. The 1st appellant was 75, and the 2nd appellant was 84 years old at the time of filing the appeal. Indeed, the reason put forth was not satisfactory for the delay to be condoned as of right. It is a settled principle that it is not the length of the delay but the reason for the delay that is material. Under such circumstances, and having regard to the ailments pleaded, I hold that the application seeking condonation of delay should have been allowed on terms.
The cause of justice requires that, as far as possible, the adjudication should be made on merits and when substantial justice and technical considerations are pitted against each other; the cause of substantial justice deserves to be preferred, as the opposite side cannot claim to have any vested right in injustice being done because of a non-deliberate delay. True, there is a distinction between an inordinate delay and a delay of short duration, and the inordinate delay requires a strict approach.
However, having regard to the facts of the case and the fact that the 2nd appellant is no more and the legal heirs have been brought on record, I am of the view that an opportunity should be given to contest the case on merits; therefore, I am inclined to hold the substantial question of law in favour of the appellants.
The appeal will stand allowed, and the order passed in I.A. No.2 of 2023 in A.S. No.33 of 2023 is set aside, and the first appeal is restored to file. However, the appellants shall pay costs of Rs.5000/- (Rupees five thousand only) to the learned counsel appearing for the respondents/plaintiffs within three weeks from the date of receipt of a copy of this judgment. If the above payment is made, the proof of the same shall be produced before the First Appellate Court; the First Appellate Court shall rehear A.S. No.33 of 2023 on merits and dispose of the same in accordance with law.
Needless to say, if the above amount is not paid within the time granted by this Court, the appellants will lose the benefit of this judgment, and the impugned order will stand confirmed.