Allowed

Ammukuttyamma-Padmavathyamma v. Velayudhan Parameswaran @ Sivan

Kerala HC14 Aug 2012OP(C)/1565/2012

Case brief

AI extract

What is this about?

Petitioner challenged the Appellate Authority's order condoning a 2207-day delay in an appeal regarding land tenancy claims. Since the civil court had already conclusively rejected the tenancy claim in the underlying eviction suit, the judge held that proceeding with the appeal was impermissible and set aside the delay condonation order.

What did the court decide?

Order of Appellate Authority condoning delay set aside. Inherent application dismissed. Main appeal dismissed as time-barred.

Ammukuttyamma-Padmavathyamma Vs Velayudhan Parameswaran @… — Landlord and Tenant | Kerala HC (2012)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

¶4

TUESDAY, THE 14TH DAY OF AUGUST 2012/23RD SRAVANA 1934

¶5

OP(C).NO. 1565 OF 2012 (O)

¶6

AA.39/2009 OF APPELLATE AUTHORITY (LR), ALAPPUZHA

¶7

PETITIONER):

¶8

AMMUKUTTYAMMA-PADMAVATHYAMMA, AGED 75 YEARS THOPPIL HOUSE, ERAMALLUR MURI, EZHUPUNNA VILLAGE.

¶9

BY ADVS.SRI.R.SUDHIR SRI.MOHAN PULIKKAL SMT.MANJU RAJAN

¶10

RESPONDENT:

¶11

VELAYUDHAN PARAMESWARAN @ SIVAN, AGED 75 YEARS KARAMANAVELIYIL ERAMALLOOR P.O. EZHUPUNNA VILLAGE, CHERTHALA TALUK, PIN-688546.

¶12

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶13

APPENDIX

¶14

(O.P(C) NO.1565 OF 2012)

¶15

PETITIONER(S)' EXHIBITS:

¶16

EXHIBIT P1 TRUE COPY OF THE ORDER OF THE LAND TRIBUNAL DATED 5.9.2005 IN R.C. NO.4 OF 2002.

¶17

EXHIBIT P2 TRUE COPY OF THE MEMORANDUM OF APPEAL, A.A. NO.39 OF 2009 FILED BEFORE THE APPELLATE AUTHORITY (LAND REFORMS), ALAPPUZHA. EXHIBIT P3 TRUE COPY OF THE AFFIDAVIT AND PETITION IN I.A. NO.104 OF 2009 IN A.A. NO.39 OF 2009. EXHIBIT P4 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER.

¶18

RESPONDENT(S)' EXHIBITS: NIL

¶19

TRUE COPY

¶20

P.S. TO JUDGE

¶21

THOMAS P.JOSEPH, J.

¶22

==================================== O.P(C) No.1565 of 2012

¶23

====================================

¶24

Dated this the 14^th day of August, 2012

¶25

J U D G M E N T

¶26

A non-speaking order condoning the delay of 2207 days is under challenge in this Original Petition.

¶27

At the instance of the respondent the Land Tribunal, Cherthala (for short, “the Tribunal”) initiated S.M.P. No.22 of 1986 on the claim of the respondent that he is a cultivating tenant of the property. The Tribunal dismissed the proceeding on 04.02.2002. After 2207 days the respondent preferred an appeal before the Appellate Authority (Land Reforms), Alappuzha (for short, “the Appellate Authority”), as A.A. No.39 of 2009 with an application to condone the delay. That application, in spite of resistance by the petitioner was allowed by the Appellate Authority by a non-speaking order as aforesaid.

¶28

The learned counsel for petitioner contends that the appeal itself was not maintainable since in the meantime, petitioner and her brother had filed O.S. No.98 of 1987 in the Munsiff's Court, Cherthala for eviction of the respondent and

¶29

O.P(C) No.1565 of 2012

¶30

-: 2 :-

¶31

others from the suit property which, according to the learned counsel is a building and appurtenant land which is less than 1.5 cents. It is pointed out by the learned counsel that when the respondent claimed tenancy and kudikidappu in the suit, those claims were referred to the Tribunal for a decision. The Tribunal took the reference as R.C. No.4 of 2002. The claim of tenancy and kudikidappu was found against as per order dated 05.09.2005. Accepting that finding the learned Munsiff passed an ex parte decree for eviction of the respondent from the suit property. Though the respondent filed an appeal against the ex parte decree with an application to condone the delay, the learned Sub Judge, Cherthala refused to condone the delay. Consequently the appeal was dismissed. The learned counsel pointed out that R.S.A. No.405 of 2012 arising from that judgment and decree was dismissed by this Court by judgment dated 13.08.2012. In the circumstances the claim of tenancy or kudikidappu no more survives for decision by the Appellate Authority. It is pointed out by the learned counsel that it is without applying mind that the Appellate Authority has chosen to condone the inordinate delay of 2207 days.

¶32

The learned counsel for the respondent contended

¶33

O.P(C) No.1565 of 2012

¶34

-: 3 :-

¶35

that there was justifiable reason for condonation of delay.

¶36

It is not disputed before me that in O.S. No.98 of 1987, the respondent had claimed tenancy and kudikidappu and those claims were referred to the Tribunal and the Tribunal found against those claims. Accepting that finding the civil court passed a decree for eviction of the respondent and others though ex parte, and that decree has become final. In other words, the finding of the Tribunal on reference that the respondent is not entitled to fixity of tenancy or kudikidappu right in the property having been accepted by the civil court, it has become final. In such a situation though the S.M.P was initiated in the year 1986, neither the Tribunal nor the Appellate Authority could proceed with the claim raised by the respondent in that proceeding. The decision of the civil court will bind the Tribunal and the Appellate Authority.

¶37

The Appellate Authority was bound to pass order on A.A. No.39 of 2009 based on the finality regarding the claim of tenancy and kudikidappu raised by the respondent, in O.S. No.98 of 1987. The decision of the Division Bench in Parmeswaran Thampi v. Pidiyan Thomas (1984 KLT 397) lends support for that view.

¶38

O.P(C) No.1565 of 2012

¶39

-: 4 :-

¶40

I must also notice that the delay involved in filing the appeal is of 2207 days. Though various reasons are stated by the learned counsel for condonation of the delay, I must notice that in the meantime respondent was contesting O.S. No.98 of 1997 and appeals arising therefrom. In the circumstances the Appellate Authority was not right in allowing I.A. No.104 of 2009.

¶41

While disposing of S.A. No.405 of 2012 by judgment dated 13.08.2012, I have granted time to the respondent and others to vacate the premises.

¶42

In the circumstances stated above, the impugned order is liable to be set aside.

¶43

Resultantly, the Original Petition is allowed as follows:

¶44

(i) The order passed by the Appellate Authority (Land Reforms), Alappuzha on I.A. No.104 of 2009 in A.A. No.39 of 2009 is set aside.

¶45

O.P(C) No.1565 of 2012

¶46

-: 5 :-

¶47

(ii) I.A. No.104 of 2009 will stand dismissed.

¶48

(iii) A.A. No.39 of 2009 is dismissed as time

¶49

barred.

¶50

THOMAS P. JOSEPH, JUDGE.

¶51

vsv

Ammukuttyamma-Padmavathyamma v. Velayudhan Parameswaran @ Sivan

Case brief

What is this about?

What did the court decide?

Ammukuttyamma-Padmavathyamma v. Velayudhan Parameswaran @ Sivan

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Velayudhan Parameswaran @ Sivan Vs Padmavathy Amma

Kandamuthan & 2 Others Vs Velappan

Idavoor Sreedharma Sastha Vs Raveendra Babu

]Oloth Mammad Vs Vadakke Kandi Sakkeena

Mrs.Malathy Balagopal Vs Mrs.Mini Sivan

Rugmini Vs N.K.Sreenivasan Nair