In a second appeal regarding a partition suit dismissed as time-barred, the Court held that when the cause for condoning delay is flimsy, the appeal must be dismissed in limine without examining the merits of the underlying partition decree.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH
TUESDAY, THE 16TH MARCH 2010 / 25TH PHALGUNA 1931
RSA.No. 272 of 2010()
--------------------AS.120/2009 of DISTRICT COURT,KOLLAM I.A.NO.1187/2003 IN OS.846/1987 of ADDL.MUNSIFF COURT, KOLLAM
APPELLANT/APPELLANT/2ND DEFENDANT
B.SHYLAJA, AGED 47 YEARS,
W/O.LATE AZHAKESAN, NOW RESIDING AT JAINLY VILLA, DEVI NAGAR 76, KAIKULANGARA DIVISION,
KOLLAM WEST VILLAGE, KOLLAM TALUK, FROM
KOTTATHAZHAM VEEDU, MUNDAKKAL WARD, KOLLAM.
BY ADV. SRI.RAJA VIJAYARAGHAVAN SRI.M.T.SURESHKUMAR
RESPONDENT(S)/RESPONDENTS/PLAINTIFF & DEFENDANTS 1, 3 AND 4::
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOMAS P. JOSEPH, J.
R.S.A.No.272 of 2010
-------------------------------------Dated this the 16th day of March, 2010.
JUDGMENT
Second Appeal arises from judgment and decree of learned District Judge, Kollam in A.S.No.120 of 2009 dismissing the appeal as barred by limitation consequent to dismissal of I.A.No.750 of 2009. Appeal arose from a final decree passed by the learned Additional Munsiff, Kollam on I.A.No.1187 of 2003 in O.S.No.846 of 1987. Appeal was presented with 97 days' delay stating that the clerk of the counsel for appellant/defendant No.2 in the trial court had promised to inform her whenever copy of judgment and decree are received but no such information was given and hence the delay. Learned District Judge was not impressed by the reason stated by the appellant for condonation of delay and dismissed I.A.No.750 of 2009. Consequently the appeal was dismissed as time barred and hence this Second Appeal
RSA No.272/2010
2
schedule. It was also directed in the preliminary decree that so far as possible building and other structures in the property will be alloted to the share of defendant Nos.1, 3 and 4 and that if no prejudice is caused to the parties and if it is convenient and beneficial for them and if the parties so desired one tenth share of plaintiff in plaint A schedule may be alloted to her from plaint B schedule along with her one fifth share in that item. Pursuant to the application preferred by the plaintiff, an advocate commissioner was appointed to make the division of the properties by metes and bounds. Advocate commissioner submitted Ext.C1 series, report, mahazar and plan. None of the parties raised any objection to Ext.C1 series. Learned Additional Munsiff accepted Ext.C1 series and passed final decree. That was challenged before the learned District Judge at the instance of defendant No.2.
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the grievance of appellant/defendant No.2 is only that an electric line passes along with western side of the suit property and that if appellant has to provide access to the plot allotted to her, she has to spare a portion of the property alloted to her. I am not inclined to think such an argument could be advanced at this stage since no objection was preferred to Ext.C1 series and no attempt was made to show that division made by the advocate commissioner is in any way inequitable. Going by Ext.C1(b) (copy of which is given to me by learned counsel) it is seen that both parties have sufficient road frontage and access. Existence of the electric line by itself may not preclude appellant/defendant No.2 from providing access from the road on the western side. At any rate, similar inconvenience has to be experienced by the plaintiff also. Having gone through the judgment under challenge I do not find any substance in the grievance of appellant/defendant No.2 that she should be given an opportunity to challenge the final decree in appeal after condoning the delay. Learned District Judge has stated that appellant has not substantiated her case as to the cause of delay and that “sufficient cause” is not made out. This is a suit for partition which started in the year 1987. Plaintiff has so far been kept out of possession of the share to which she is legitimately entitled. There is no reason why on a flimsy ground the matter has again to be dragged. There is nothing illegal in the order of the District Judge to involve any substantial question of law.
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The Second Appeal is therefore dismissed in limine.
I.A.No.677 of 2010 will stand dismissed.
THOMAS P.JOSEPH, Judge.
cks
1 issue framed by the court
Whether the appellant is entitled to an opportunity to challenge the final decree on partition after the High Court finds that the cause for condoning delay is flimsy.
B.SHYLAJA
B.SHEELA
THOMAS P.JOSEPH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
