Allowed

Sethunatha Sarma v. Girija

Kerala HC29 Jun 2012RSA/321/2012

Case brief

AI extract

What is this about?

In a second appeal regarding a suit for title and possession filed with significant delay, the High Court of Kerala held that the delay was satisfactorily explained. The court allowed the appeal for remitting the case to the District Judge for a fresh decision on the merits, subject to the appellant depositing costs.

What did the court decide?

I.A. No.2855 of 2010 allowed; A.S. No.329 of 2010 remitted to District Judge for fresh hearing under Order XLI Rule 11 CPC upon deposit of Rs. 2,500.

Sethunatha Sarma Vs Girija — Property and Title | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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FRIDAY, THE 29TH DAY OF JUNE 2012/8TH ASHADHA 1934

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RSA.NO. 321 OF 2012 ()

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AS.329/2010 OF DISTRICT COURT, KOLLAM OS.33/1995 MUNSIFF'S COURT, KARUNAGAPPALLY

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APPELLANT/APPELLANT/PLAINTIFF:

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SETHUNATHA SARMA S/O.SANKARAN NAMBOODIRI, VADASSERY ILLAM CLAPPANA THEKKUM MURI, CLAPPANA VILLAGE.

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BY ADV. SRI.B.KRISHNA MANI

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RESPONDENT(S)/RESPONDENTS/DEFENDANTS:

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1. GIRIJA SANKARANARAYANA PILLAI, S/O.KESAVA PILLAI KOLADATHU THARAYIL VEEDU, CLAPPANA THEKKUM MURI CLAPPANA VILLAGE, KOLLAM - 690525.

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2. RAJENDRAN PILLAI S/O.SREEDHARAN NAIR, LEELA SADANAM CLAPPANATHEKKUM MURI, CLAPPANA VILLAGE KOLLAM - 690525.

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3. ANANDAM D/O.SAUDAMINI AMMA KOTTACKAKATHU KIZHAKKEPUTHENVEEDU CLAPPANA THEKKUM MURI,CLAPPANA VILLAGE KOLLAM - 690525.

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BY ADV. SRI.PRATHEESH.P BY ADV. SRI.S.ABHILASH BY ADV. SMT.CHITHRA.S.BABU

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R1 & R3

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BY ADV. SRI.ALEX N.MATHEW BY ADV. SRI.H.RAMANAN BY ADV. SRI.JAMES JOSE R2

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P.JOSEPH, J.

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==================================== R.S.A. No.321 of 2012 ==================================== Dated this the 29^th day of June, 2012

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J U D G M E N T

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Heard. Admit.

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The following substantial question of law is framed for

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a decision:

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Whether on the given facts and circumstances of the case the first appellate court is justified in holding that appellant has not shown sufficient cause for the delay and whether the first appellate court was justified in exercising its discretion against condonation of the delay.

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Respondents 1 and 2 appear through counsel. Third respondent is served. But there is no response.

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In view of the substantial question of law I have framed, reason stated for the delay and its objection are extracted by the learned District Judge, Kollam in the impugned order and a copy of the affidavit in support of I.A. No.2855 of 2010 and the objection preferred by the second respondent are given to me for perusal and in view of the decision I propose to take in this

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R.S.A. No.321 of 2012

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appeal, it is not necessary to call for the entire records of the case.

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The litigation started in the year, 1995 originally for fixation of boundary, later amended as one for declaration of title and recovery of possession as well. Appellant filed O.S. No.33 of 1995 in the court of learned Munsiff, Karunagappally (learned counsel for respondents tells me that the number of suit given in the judgment as O.S. No.33 of 2005 is wrong). Learned Munsiff initially dismissed the suit against which appellant filed A.S. No.122 of 2006. First appellate court allowed that appeal by way of remand with a direction to the trial court to decide the issue regarding possession. After remand appellant got the plaint amended as per order on I.A. No.1001 of 2007. There was a further application for amendment, as well. Trial court thereafter, by judgment dated 18.01.2008 dismissed the suit against which appellant filed A.S. No.329 of 2010 in the court of learned District Judge, Kollam. As that appeal was filed beyond 994 days appellant filed I.A. No.2855 of 2010 to condone the delay. The application was resisted by the respondent. Learned District Judge vide order dated 27.10.2011 dismissed I.A. No.2855 of 2010 and consequently dismissed A.S. No.329 of 2010 as well.

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R.S.A. No.321 of 2012

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Hence this Second Appeal.

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Learned counsel for appellant contended that it was in the circumstances stated in the affidavit in support of the application to condone delay that appellant could not file the appeal on time. Learned counsel for respondents contended that the statement made by the appellant for condonation of the delay is proved to be not correct.

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In the affidavit in support of I.A. No.2855 of 2010 it is stated that the clerk of counsel for appellant in the trial court had told him that when the copy of judgment is received, he will send intimation to the appellant. But he did not get any such intimation. Two days before filing of the appeal when the appellant went to the office of the counsel it was revealed that copy of judgment was received in February, 2008 and the clerk of the counsel had sent a letter to him but it was lost in transit. It is further stated that appellant was suffering from Arthritis from 15.02.2008 to 17.12.2010.

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Learned District Judge observed from the materials placed before him that the said version of the appellant cannot be accepted since appellant admitted that he had been to the Sub Court, Kollam and Mediation Centre (in connection with some

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R.S.A. No.321 of 2012

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other case) and on another occasion with the help of others he was present when A.S. No.9 of 2010 of the District Court, Kollam was settled at the Mediation Centre. In the circumstances version of the appellant cannot be accepted.

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Merely for the reason that the appellant had been to the Sub Court, Kollam and the Mediation Centre once, I am not inclined to think that version of the appellant as the reason for delay has to be rejected. He has a case that the clerk of his counsel in the trial court had told him that intimation will be given on receipt of copy of the judgment but the intimation sent to him had not reached him as it was lost in transit.

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It is a case where appellant has prayed for a decree for declaration of title, recovery of possession and fixation of boundary. I am not inclined to think, in the absence of sufficient materials that in such a situation appellant would have declined to file the appeal on time and inviting the possibility of the judgment and decree of the trial court becoming final. Appellant did not stand to gain by delaying filing of the appeal. These aspects were not taken into account by the learned District Judge. Having regard to the facts and circumstances stated I am inclined to think that delay is explained by the appellant. But the

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R.S.A. No.321 of 2012

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discretionary power to condone delay has to be exercised on terms of costs having regard to the length of delay. I am inclined to allow I.A. No.2855 of 2010 on terms of costs payable to respondents 1 and 2, equally.

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Substantial question of law framed is answered as above.

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Second Appeal is allowed as under:

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(i) Order on I.A. No.2855 of 2010 in A.S. No.329 of 2010 of the court of learned District Judge, Kollam and the judgment and decree of that court in A.S. No.329 of 2010 will stand set aside, I.A. No.2855 of 2010 will stand allowed and A.S. No.329 of 2010 will stand remitted to the court of learned District Judge, Kollam for fresh decision on condition that appellant pays/deposits in this Court for payment to respondents 1 and 2, Rs.2,500/- (Rupees Two thousand and five hundred only) by way of costs (which shall be shared by respondents 1 and 2 equally) within two weeks from this day.

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(ii) On compliance of the above condition, I.A. No.2855 of 2010 will stand allowed and A.S. No.329 of 2010 will stand

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R.S.A. No.321 of 2012

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remitted to the court of learned District Judge, Kollam for hearing under Rule 11 of Order XLI of the Code of Civil Procedure.

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(iii) In case the appeal stand remitted as above, appellant shall appear in the court of learned District Judge, Kollam on 30.07.2012. To avoid unnecessary delay in case learned District Judge decides to admit the appeal, respondent may also appear in that court.

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(iv) In case costs as aforesaid is not paid/deposited, this appeal will stand dismissed in confirmation of the order passed on I.A. No.2855 of 2010 and the judgment and decree in A.S. No.329 of 2010.

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All pending Interlocutory Applications will stand dismissed.

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THOMAS P. JOSEPH, JUDGE.

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vsv

Sethunatha Sarma v. Girija

Case brief

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Sethunatha Sarma v. Girija

Case brief

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