2025:KER:30687 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM TUESDAY, THE 8TH DAY OF APRIL 2025 / 18TH CHAITHRA, 1947 RSA NO. 544 OF 2024 AGAINST THE JUDGMENT AND DECREE DATED 24.01.2024 IN AS NO.121 OF 2023 OF DISTRICT COURT, KOZHIKODE ARISING OUT OF THE JUDGMENT AND DECREE DATED 09.11.2022 IN OS NO.315 OF 2018 OF PRINCIPAL MUNSIFF COURT-I, KOZHIKODE APPELLANT(S)/APPELLANT/DEFENDANT: SAMBATH BABU, AGED 54 YEARS S/O. VALIYAPURACKAL CHANDRAN, PERADI HOUSE, PADINHATTUMURI AMSOM, MORIKKARA DESOM, (PO) MORIKKARA, KOZHIKODE DISTRICT, PIN - 673611 BY ADVS. JAMSHEED HAFIZ T.S.SREEKUTTY RESPONDENT(S)/RESPONDENT/PLAINTIFF: P. PURUSHOTHAMAN AGED 71 YEARS S/O. ANALAM PARAMBATH KUMARAN, KOLLADATH HOUSE, PADINHATTUMURI AMSOM, 2025:KER:30687 RSA NO.544 OF 2024 2 MORIKKARA DESOM, (PO) MORIKKARA, KOZHIKODE DISTRICT, PIN - 673611 BY ADVS. TERRY V. JAMES ABRAHAM KOLLINAL(K/1092/2012) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2025:KER:30687 RSA NO.544 OF 2024 3 JUDGMENT 1. The appellant is the defendant in the suit. The suit was for mandatory injunction to evict the defendant from the plaint schedule shop, arrears of license fee and damages for use and occupation. The Trial Court decreed the suit. 2. The defendant filed A.S.No.121/2023 before the First Appellate Court with I.A. No.1/2023 to condone the delay of 342 days. I.A. No.1/2023 was dismissed. Consequently A.S.NO.121/2023 was also dismissed. This appeal is filed challenging the judgment and decree passed by the First Appellate Court dismissing the appeal, taking grounds against the order dismissing the application to condone delay. 3. I heard the learned counsel for the appellant Shri.Jamsheed Hafiz and the learned counsel for the respondent Sri.Terry.VJames . 2025:KER:30687 RSA NO.544 OF 2024 4 4. The learned counsel for the appellant submitted that the suit was listed for trial on 08/11/2024 and on that day the plaintiff was suffering from acute bronchitis and the defendant filed an application for adjournment producing Medical Certificate. The Trial Court dismissed the application on the same day and proceeded with the suit. On account of the continued illness, he could not contact the counsel, and after recovering from the illness, he contacted the counsel and thereafter immediately filed an appeal before the First Appellate Court. The learned counsel contended that the delay is sufficiently explained before the First Appellate Court. The First Appellate Court ought to have condoned the delay taking a lenient approach in order to enable consideration of the matter on merits, rather than taking hyper technical approach. 5. On the other hand, the learned counsel for the respondent 2025:KER:30687 RSA NO.544 OF 2024 5 contended that the suit is of the year 2018, and the Trial Court could dispose of the suit only in the year 2022. All along the respondent had been dragging the proceedings. At every stage, he has caused unexplained delay. Before the First Appellate Court, he had filed the appeal with application to condone delay. Before this Court also he has filed the appeal with an application to condonation delay. The First Appellate Court rightly dismissed the Application to condone delay. There is nothing to interfere. 6. I have considered the rival contentions. 7. The Trial Court passed judgment on 09/11/2022. The contention of the appellant is that he was laid up with bronchitic and asthmatic disease from 05.12.2022 to 14.11.2023, which is proved by the Medical Certificate produced by him. The appeal was filed by the defendant producing a Medical Certificate dated 14/11/2023 to 2025:KER:30687 RSA NO.544 OF 2024 6 explain the delay in filing the appeal. The First Appellate Court found the respondent had specifically pleaded that the appellant had appeared before the Execution Court on five occasions during the period of delay. The dates of such appearance were specifically referred to in the Counter Affidavit filed by the respondent. The respondent produced certified copies of the Vakalath and Counter in the execution proceedings to prove that the appellant was participating in the execution proceedings during the relevant time. When the respondent took such contention, no explanation whatsoever was offered by the appellant with respect to the appearances before the Execution Court and nonfiling of the appeal during the said period. Even though the appellant produced a Medical certificate, the Doctor who issued the same was not examined to prove the Medical Certificate. I am of the view that the 2025:KER:30687 RSA NO.544 OF 2024 7 appellant did not sufficiently explain the delay before the First Appellate Court. Hence the First Appellate Court was fully justified in dismissing the application to condone delay. 8. The learned counsel for the appellant pointed out that Trial Court granted Rs.20,000/- per month for use and occupation when the agreed monthly license fee was Rs.1,200/-. 9. On perusing the judgment, it is seen that the Trial Court issued a mandatory injunction to vacate the plaint schedule building against the defendant. It was further directed to pay Rs.31,170/- as arrears of license fee, Rs.20,000/- as damages caused to the building, Rs.20,000/- per month as damages for the illegal use and occupation of the plaint schedule building from 22/06/2018 till he surrenders the vacant possession of the building to 2025:KER:30687 RSA NO.544 OF 2024 8 the plaintiff. 10.Normally, this Court is not expected to consider the merits of the claim when the appeal is dismissed by the First appellate Court consequent to the dismissal of the application to condone delay. But this Court can not shut its eyes when a glaring illegality is committed by the Trial Court. The damages ordered by the Trial Court is with effect from 22.06.2018. If the decree is sustained, the defendant, who had been paying a monthly license fee @ Rs.1,200/-, will have to pay more than Rs.16,00,000/- to the plaintiff. The rate of damages ordered by the Trial Court is quite unconscionable. 11.When this Court expressed that the said amount of Rs.20,000/- is highly exorbitant, when the monthly license fee of Rs.1,200/- is taken into consideration and that this Court will be compelled to admit the appeal on this 2025:KER:30687 RSA NO.544 OF 2024 9 ground, the learned counsel for the respondent after taking instructions from the respondent fairly conceded that the said monthly damages can be fixed at the rate Rs.3,000/- per month. In view of the said submission, I am of the view that the judgment and decree passed by the Trial Court could be modified to that effect. 12.Hence, I dispose of this Regular Second Appeal modifying the judgment decree of the Trial Court substituting the rate of damages of Rs.20,000/- per month in Relief No. 4 with Rs.3,000/- per month. The judgment and decree passed by the Trial Court is maintained in all other respects. Sd/- M.A.ABDUL HAKHIM JUDGE sms