Kerala High Court
Kasim vs Ibrahim on 17 December, 2012
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
MONDAY, THE 17TH DAY OF DECEMBER 2012/26TH AGRAHAYANA 1934
RSA.No. 1509 of 2012 ()
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IA.NO.503/2012 IN AS.94/2012 of D.C & SESSIONS COURT, PALAKKAD
OS.130/2008 of SUB COURT, OTTAPPALAM
APPELLANT(S)/APPELLANTS/DEFENDANTS:
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1. KASIM, AGED 66 YEARS
S/O.ALAVI, MUKKATTIL HOUSE, THOTTAKKARA
KANNIYAMPURAM, OTTAPALAM TALUK.
2. KHADEEJA, AGED 55 YEARS
W/O.KASIM, MUKKATTIL HOUSE, THOTTAKKARA
KANNIYAMPURAM, OTTAPALAM TALUK.
BY ADV. SRI.R.SREEHARI
RESPONDENT(S)/RESPONDENT/PLAINTIFF:
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IBRAHIM, AGED 58 YEARS
S/O.HASSAN, RESIDING AT KALLAZHIKKUNNATH
CHERUTHURUTHI, THALAPPILLI TALUK
CHERUTHURUTHY POST, THRISSUR DISTRICT, PIN-679531.
BY ADV. SRI.T.SETHUMADHAVAN(CAVEATOR)
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
17-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
stu
THOMAS P. JOSEPH, J.
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R.S.A. No. 1509 of 2012
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Dated this the 17th day of December, 2012
JUDGMENT
This second appeal arises from the judgment and decree of the District Court, Palakkad dismissing A.S. N. 94 of 2012 consequent to the dismissal of I.A. No. 503 of 2012 to condone the delay of 458 days.
2. The second appellant is the sister of the respondent. The first appellant is her husband. It is not in dispute that at a time when the respondent was going abroad, he had entrusted management of the suit property with the first appellant as per a power of attorney dated 15.05.1993. On the strength of that power of attorney, the first appellant was in occupation of the suit property. The power of attorney was cancelled on 17.06.2002. The respondent filed O.S. No. 151of 2002 against the first appellant for rendition of accounts. There, a decree was granted in favour of the respondent on 27.02.2002. The respondent filed O.S.No.130 of 2000 in the Sub Court, Ottapalam against the appellants for recovery of possession of the suit R.S.A. No.1509 of 2012 -: 2 :- property with profits.
3. The appellants while admitting the power of attorney and its termination, claimed that the first appellant has executed an agreement for sale in favour of the second appellant on the strength of the power of attorney and that the second appellant has filed O.S. No. 53 of 2003 against the respondent for specific performance of that agreement. That suit was dismissed on 27.07.2007 against which RFA. No. 86 of 2008 is pending in this court. It is also contended that the suit is barred by constructive res judicata ( in so far as no prayer for recovery of possession was made in O.S. No. 159 of 2002).
4. The trial court answered the issues against the appellants and granted a decree for recovery of possession with profits at the rate of Rs.75/- per day from 26.06.2005 until vacant possession is given to the respondent.
5. The challenge of that judgment and decree the appellants preferred A.S. No. 94 of 2012 with I.A. No. 503 of 2012 to condone the delay.
6. The learned District Judge found no sufficient cause for the delay and dismissed I.A No. 503 of 2012. Consequently, A.S. No. 94 of 2012 was also dismissed. Thus this second appeal. R.S.A. No.1509 of 2012 -: 3 :-
7. The learned counsel for the appellant has contended that the appellants have valid contentions to be raised in the first appellate court including bar of the suit under Rule 2 of Order II of the Code of Civil Procedure(for short, "the Code"). It is contended that it was under the bonafide impression that the appeal preferred against the judgment and decree in O.S. No. 159 of 2002 and RSA No. 1143 of 2012 arising from O.S No. 1 of 2003 (concerning an adjoining shop room) covered challenge to judgment and decree in O.S. No. 130 of 2000 (the present suit) that the appellants did not take steps to file the appeal on time.
8. The learned counsel who took notice for respondent submits that there is no merit in the contentions. According to the learned counsel, in O.S. No. 159 of 2002 while claiming profits till 22.06.2002 ( termination of power of attorney was on 17.06.2002), the respondent has reserved his right to claim and recover future profits from the suit property and in the circumstances, question of bar under Rule 2 of Order II of the Code does not arise. According to the learned counsel, there is no conceivable contention which the appellants could raise in the first appeal and hence filing of the appeal was delayed with the sole object of delaying the execution. It is also pointed out by R.S.A. No.1509 of 2012 -: 4 :- the learned counsel that the trial court granted decree in favour of the respondent on 10.12.2010 and following that, the respondent has filed execution petition in the year, 2011 as E.P. No. 46 of 2011. The executing court ordered delivery of the property to be effected by 10.03.2012. It is only thereafter that the appellants even applied for a copy of judgment and decree of the trial court. In the circumstances, there is no merit in the application to condone the delay, it is argued.
9. The learned counsel has given me a copy of the plaint in O.S. No. 159 of 2002 for perusal. There, I find that the claim for profits is made till 22.06.2002 though the power of attorney was terminated on 17.06.2002. Going by the averments in the plaint it would appear that there is no claim for "mean profits" as if the appellants are in "unlawful possession" of the suit property. However, it is not necessary for me to go into those questions in this second appeal since the question raised is only concerning the dismissal of I.A. No. 503 of 2012 as being without sufficient cause.
10. It is agreed by both sides that there is a number of litigations between the parties, closely related as first above mentioned. Concerning the adjoining shop room, the R.S.A. No.1509 of 2012 -: 5 :- respondent filed O.S. No. 1 of 2003 and obtained a decree for mandatory injunction to break open the additional lock the appellants have put to that shop room. That judgemnt and decree were challenged in this court in R.S.A. No. 1143 of 2012, the first appeal having failed. This court by judgment dated 19.10.2012 disposed of that second appeal.
11. Yet another litigation between the parties is O.S. No. 159 of 2002, the suit filed by the respondent for rendition of accounts concerning the shop room in question. That judgment and decree are under challenge in RFA No. 446 of 2007. The yet another one ( also concerning the shop room )i s O.S. No. 53 of 2003 filed by the second appellant seeking specific performance of an agreement for sale (allegedly) executed by the first appellant in her favour and (allegedly) acting upon the power of attorney. That suit was dismissed on 27.07.2007 against which R.F.A. No. 86 of 2008 is pending.
12. The learned counsel for the respondent submits that the second appellant has (allegedly) executed an agreement dated 25.10.2012 concerning the shop room involved in O.S. 1 of 2003 in favour of a third party who in turn, has filed O.S. No. 358 of 2012 against the respondent and obtained an order for R.S.A. No.1509 of 2012 -: 6 :- stay of delivery. Thus, it is seen that the parties are fighting tooth and nail notwithstanding their close relationship. In such a situation it appears to me that the stand of the appellants that they were under the impression that the dispute in O.S. No. 130 of 2000 is involved in R.F.A. No.646 of 2007 and the appeals arising from the judgment and decree in O.S.No.1 of 2003 is difficult to be accepted. Normally, I must think that the litigating parties were aware of the claims and counter claims made in the respective suits. Viewed in that line there is no reason to think that the appellants were under the impression that the dispute in O.S. No. 130 of 2000 is covered by RFA No. 646 of 2007 and the appeals arising from the judgment and decree in O.S. No. 1 of 2003 (which only concerned the adjoining room). The first appellate court has referred the above and held that no sufficient cause is made out to condone the delay. As per Sec.5 of the Limitation Act, discretionary jurisdiction of the court to condone the delay arises only when sufficient cause is shown. In so far as the appellants have not shown sufficient cause as found by the learned District Judge, question of exercise of discretion does not arise. Viewed in that line, I do not find any substantial question of law involved in this appeal. R.S.A. No.1509 of 2012 -: 7 :-
13. The learned counsel for the appellants has submitted that the executing court has directed delivery of the property to be effected on 18.12.2012. It is submitted that the first appellant is running a milma booth in a room in the suit property and that if the delivery is effected tomorrow, it is possible that the first appellant even may lose his license for running the milma booth. The learned counsel has requested one year time to vacate the premises.
14. The learned counsel for the respondent submitted that it may not be appropriate to grant further time and at any rate as requested by the appellants since having regard to the conduct of the second appellant in carrying forward the litigation in O.S. No. 1 of 2003 to another person by executing an agreement for sale, such a possibility cannot be ruled out so far as the suit property is concerned. At any rate, it is submitted that this court may not grant time beyond two months and that too, subject to stringent conditions including that the appellants deposit the entire amount due as per the decree of the trial court.
15. Having heard the learned counsel on both sides, considering the nature of business the first appellant is R.S.A. No.1509 of 2012 -: 8 :- carrying out in the suit property and the apprehension that if he is evicted immediately he might even lose his license for running the milma booth, I am inclined to grant 6 (six) months time to the appellants to vacate the suit property but subject to conditions.
Resultantly, the second fails and it is dismissed. However, the appellants are granted six (6) months time to vacate the suit property subject to the following terms and conditions:-
1) The the appellant shall, by the expiry of six (6) months from this day, vacate the suit property without putting forth any claim of objection on any ground whatsoever.
2. The appellants shall deposit the entire amount due to the respondent as per the decree of the trial court as on the last day of February - 2013 in the executing court before that day. Such amount can be withdrawn by the respondent.
3. The appellants shall continue to deposit in the executing court at the rate of Rs.75/- per day from 01.03.2013 until the expiry of the said period of six (6) months or till they vacate the premises whichever is earlier. Such deposit shall be made on or before the 5th of every succeeding month (i.e. the R.S.A. No.1509 of 2012 -: 9 :- first deposit shall be on or before 05.04.2013) and if that happens to be a holiday, such deposit shall be made on the next working day.
4. The appellants shall not create documents with respect to the suit property, its occupation or induct third parties into possession of the same in any manner whatsoever.
5. The appellants shall file affidavit in the executing court within three (3) weeks from this day undertaking to comply with the above conditions.
6. It is made clear that if any of the above conditions is violated, it will be open to the executing court to proceed with the execution notwithstanding the time granted hereby.
7. It is directed that delivery proceedings in O.S No. 130 of 2000 of the Sub Court, Ottapalam will stand in abeyance during the said period of six (6) months or till any of the above terms and conditions is violated by the appellants or till they vacate the premises, whichever is earlier.
Sd/-
THOMAS P.JOSEPH,
JUDGE
smv //True copy//
P.A. To Judge