2025:KER:27089 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SATHISH NINAN & THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN FRIDAY, THE 28TH DAY OF MARCH 2025 / 7TH CHAITHRA, 1947 FAO NO. 147 OF 2024 AGAINST THE ORDER DATED 09.09.2024 IN I.A.NO.1 OF 2023 IN OS NO.28 OF 2017 OF ADDITIONAL SUB COURT, THALASSERY ARISING OUT OF THE ORDER IN I.A.NO.2 OF 2023 IN OS NO.28 OF 2017 OF ADDITIONAL SUB COURT, THALASSERY APPELLANT/PETITIONER/PLAINTIFF: KUNNUMMAL PALTHUNKARA ASSU AGED 76 YEARS S/O MAMMU HAJI, BUSINESS, RESIDING AT 'VALIYA PURAYIL’, KOTTAYAM MALABAR P.O., KOTTAYAM AMSOM, KINAVAKKAL DESOM, THALASSERY TALUK, KANNUR DISTRICT, PIN - 670643 BY ADVS. MEENA.A. VINOD RAVINDRANATH M.R.MINI ANISH ANTONY ANATHAZHATH THAREEQ ANVER K. NIVEDHITHA PREM.V 2025:KER:27089 F.A.O. No.147 of 2024 -: 2 :- RESPONDENT/RESPONDENT/DEFENDANT: A.T. HASHIM AGED 44 YEARS S/O ASSU, BUSINESS, RESIDING AT 'SHAMIL’, NEAR STATE BANK OF TRAVANCORE, PUNNAD, KEEZHUR AMSOM, PUNNAD DESOM, IRITTY TALUK, KANNUR DISTRICT, PIN - 670703 BY ADV Peethambaran C P THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR HEARING ON 28.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2025:KER:27089 SATHISH NINAN & SHOBA ANNAMMA EAPEN, JJ. = = = = = = = = = = = = = = = = = = F.A.O. No.147 of 2024 = = = = = = = = = = = = = = = = = = Dated this the 28th day of March, 2025 JUDGMENT Sathish Ninan, J. The suit for cancellation of a Settlement Deed, was dismissed by the trial court as 'not pressed'. The application filed under Order IX Rule 9 of CPC for restoration of the suit, accompanied by an application to condone the delay of 1876 days, excluding the Covid- 19 pandemic period, was dismissed by the trial court. The plaintiff-petitioner is in appeal. 2. The suit was filed by the father against the son. He sought cancellation of the Settlement Deed dated 2025:KER:27089 F.A.O. No.147 of 2024 -: 2 :- 24.04.2014 executed by him in favour of his son. The allegation was of fraud and misrepresentation. The suit was filed on 22.05.2017. On 27.11.2017, recording the 'not pressed' memo filed by the plaintiff, the suit was dismissed. 3. Subsequently, in the year 2023, the plaintiff filed I.A.Nos.1 and 2 of 2023, seeking restoration of the suit under Order IX Rule 9 of CPC and for condoning the delay of 1876 days in filing the application. It was contended that the suit was withdrawn since the defendant undertook to re-convey the property by executing a Settlement Deed. Since he failed to honour the promise, the suit is sought to be restored. The applications were opposed by the defendant-respondent. It was contended that another son of the plaintiff is 2025:KER:27089 F.A.O. No.147 of 2024 -: 3 :- behind the proceedings. 4. The trial court held that, since the suit was dismissed as 'not pressed', the applications under Order IX Rule 9 of CPC may not apply, still the applications could be considered as one for review under the inherent power. However, the trial court found that the long delay of 5 years has not been explained and accordingly, dismissed the applications. 5. We have heard the learned counsel on either side. 6. The trial court noticed that the total extent of delay involved is 5 years and that even if the period covered by Covid-19 pandemic is excluded, still the delay is more than 3 years. The court noticed that the plaintiff-petitioner is not an illiterate person but, is 2025:KER:27089 F.A.O. No.147 of 2024 -: 4 :- an accomplished business man. He admits that on his instructions the suit was dismissed as 'not pressed. It is his case that, on receipt of the summons in the suit the defendant undertook that he would re-convey the property to the plaintiff. There is no evidence to substantiate the same. Even if the said contention is accepted, the dismissal was on 27.11.2017 and the present applications are filed only on 17.01.2023. If the defendant failed to honour his commitment to re- convey the property, the plaintiff ought to have taken steps within a reasonable time. It cannot be accepted that he waited indefinitely, for long period of 5 years. As held by the court, the explanation offered by the petitioner is not at all acceptable. The long delay in filing the application is not satisfactorily explained. 2025:KER:27089 F.A.O. No.147 of 2024 -: 5 :- Though it is the general rule that unless the explanation for the delay smacks malafides, the court should take a liberal approach, in the case at hand, we find that the explanation offered by the appellant for the long and inordinate delay is far from satisfactory. The trial court was right in having dismissed the applications. There is no merit in the appeal. The appeal fails and is dismissed. No costs. Sd/- SATHISH NINAN JUDGE Sd/- SHOBA ANNAMMA EAPEN JUDGE yd