Velayudhan Parameswaran @ Sivan vs Padmavathy Amma and Others

Thomas P. Joseph

This second appeal is preferred by the 4th defendant challenging judgment and decree in A.S.No.18 of 2001 of the Sub Court, Cherthala. That appeal arose from the exparte judgment and decree of the Additional Munsiff''s Court, Cherthala in O.S. No. 98 of 1987. Respondents 1 and 2 filed the suit against the appellant/4th defendant and others seeking a decree for eviction. That suit ended in an exparte decree. Appellant filed A.S.No.18 of 2009 with a delay of 971 days. The application was opposed by respondents 1 and 2. Learned Sub Judge by order dated 14.03.2011 dismissed I.A. No. 199 of 2009 holding that the delay is not explained. Consequently, A.S.No.18 of 2009 also was dismissed. Hence the second appeal.

The learned counsel contended that the appellant had valid contentions to be raised in A.S.No.18 of 2009. It is contended that though in S.M. Proceeding No. 22 of 1986 of the Land Tribunal, Cherthala (for short, "the Tribunal") claim of the appellant that he is a cultivating tenant of the suit property was found against, he preferred an appeal to the Land Reforms Appellate Authority, Alappuzha (for short, "the Appellate Authority") as A.A. No. 39 of 2009 with an application to condone the delay, the delay was condoned and that order is under challenge in this Court at the instance of respondents 1 and 2. In the circumstances, the first appellate court ought to have condoned the delay and the contention of the appellant in A.S.No.18 of 2009 was to be considered on merit.

The learned counsel for respondents 1 and 2 contended that the trial court had referred to the question of tenancy raised by the appellant to the Tribunal but, that was found against. Hence the S.M. Proceeding itself was not maintainable. The delay in filing the appeal is not properly explained.

The delay involved in filing the appeal is of 971 days. The reason stated is that the appellant was taking recourse to the provisions of Rule 13 of Order IX of the CPC and hence, there happened to be a delay.

It is seen from the order dated 14.03.2011 on I.A. No. 199 of 2009 that the learned Sub Judge found that there was no satisfactory explanation for the inordinate delay. That, the appellant had initiated some proceeding under Rule 13 of Order IX of the Code is not by itself sufficient to show that there was sufficient cause for the delay.

The Supreme Court in State of Karnataka Vs. Y. Moideen Kunhi (dead) by Lrs. and Others, has held that when the delay involved is inordinate, a stricter approach must be taken. That is because the opposite party has acquired a right by the appellant not filing the appeal on time.

In this case, the delay involved is of 971 days which the first appellate court found, is not properly explained.

I must also notice the case pleaded by the appellant. The suit property is a building and the land appurtenant to it which according to the learned counsel for respondents 1 and 2 is less than 1.5 cents. Appellant has raised a plea of tenancy and that was referred to the Tribunal, but, only to be found against. I do not also find any bonafides in I.A. No. 199 of 2009 to condone the delay. I do not find any substantial question of law involved in the second appeal.

The learned counsel has submitted that the appellant and respondents 3 onwards are facing threat of eviction and that the execution petition is posted on 16.08.2012. The learned counsel requested for breathing time to vacate the premises since this Court found that the second appeal cannot be entertained. I have heard learned counsel for respondents 1 and 2 also in this regard. Having regard to the difficulties expressed by the learned counsel on behalf of the appellant, I am inclined to grant three (3) months time to vacate the suit property.

Resultantly the Second Appeal is dismissed. But the appellant and supporting respondents are granted three (3) months time from this day to vacate the suit property subject to the following conditions:

i. that by the expiry of the said period of three months, appellant and respondent No. 3 onwards shall vacate the suit property without putting forth any claim or objection on any account whatsoever. RSA No. 405/2012 4

ii. that the appellant and respondent No. 3 onwards shall not create documents with respect to the suit property, encumber or induct third parties into possession thereof.

iii. that the appellant shall file an affidavit within two weeks from this day on behalf of respondent No. 3 onwards as well, undertaking to comply with the above conditions.

iv. In case any of the above conditions is not complied, respondents 1 and 2 can proceed with the execution notwithstanding the time granted hereby.

v. It is directed that the delivery proceedings will stand in abeyance during the above said period of three months or till appellant and respondent No. 3 onwards vacate the suit property or any of the above stated conditions is violated, whichever is earlier.

All pending interlocutory applications will stand dismissed.