Allowed

Wilson (Elias) v. Judson @ Johnson & 25 Others

Kerala HC20 Jun 2012RSA/771/2011

Case brief

AI extract

What is this about?

In a second appeal against dismissal of appeals barred by limitation, the High Court of Kerala allowed the appeal by condoning a 179-day delay due to Chicken gunia. The court set aside the lower court's order and remitted the appeals for consideration.

What did the court decide?

The order of the Sub Judge on limitation applications and the second appellate decrees are set aside. The appeals are remitted to the Sub Judge for fresh consideration under Order XLI, Rule 11 of the

Wilson (Elias) Vs Judson @ Johnson & 25 Others — 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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WEDNESDAY, THE 20TH DAY OF JUNE 2012/30TH JYAISHTA 1934

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RSA.No. 771 of 2011 ( )

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AS.NOS.51 AND 52 OF 2008 of SUB COURT,NEYYATTINKARA OS.794/2001 of I ADDL.MUNSIFF COURT,NEYYATTINKARA

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APPELLANT/APPELLANT/7TH DEFENDANT:

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WILSON (ELIAS), S/O.MUTHAIAN NADAR, ASWATHY BHAVAN, AMBALIKONAM, AYRAYIL DESOM KARODE VILLAGE, NEYYATTINKARA TALUK.

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BY ADVS.SRI.L.MOHANAN

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SMT.LIGEY ANTONY

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RESPONDENTS/RESPONDENTS/PLAINTIFFS AND OTHER DEFENDANTS:

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JUDSON @ JOHNSON, S/O.APPILOSE, UDAYAN THACHAN VILA VEEDU, AYRAYIL DESOM KULATHOOR PAKUTHI-695583

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PUSHPABAI, D/O.APPILOSE, DO. DO.

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ROBINSON, S/O.APPILOSE, DO. DO.

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RAJAMONI, S/O.APPILOSE, DO. DO.

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JAPAMONI, S/O.APPILOSE, DO. DO.

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JAPANESOM, D/O.APPILOSE, DO. DO.

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BALANCHIS @ REMANI, D/O.APPILOSE, DO. DO.

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ALEES LILLY BAI,

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PARASSALA PAKUTHY, DO. DO.

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ALEES ESILLY,

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OORAVILA VEEDU, PLAMOOTTUKADA, NALLOORVATTAM DESOM KULATHOOR PAKUTHY-695583

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SATHYANESAN, RASSALAM, PARAMBITHOTTATHU VEEDU, AYRAYIL DESOM DO. DO.

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ALEES BABY, PLANKALA PUTHEN VEEDU, PLAMOOTTUKADA NALLOORVATTOM DESOM, KULATHOOR PAKUTHY-695583

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RSA.No. 771 of 2011 2

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SATHYANESAN RAJU, PARAMBITHOTTATHU VEEDU, AYRAYIL DESOM KULATHOOR PAKUTHY-695583 13. ALEES PALARY, DO. DO. 14. ALEES THANKA BAI, DO. DO. 15. ALEES KANAKAM, DO. DO. 16. JOHN SHOBHANA DAS, S/O.SATHYANESAN DO. DO. 17. CHINNAPILLA NADAR RAVEENDRAN, THEMMANAVILA VEEDU, ERICHALLOOR DESOM KULATHOOR PAKUTHY. 18. CHINNA PILLA NADAR WILLIAM, DO. DO. 19. AMRUTHAM NADAR WILSON, MAHADEVARVILA PURAYIDOM, AYRAYIL DESOM KULATHOOR PAKUTHY. 20. AMRUTHAM NADAR FRANCIS, DO. DO. 21. CHINNARETNAM, DO. DO. 22. RAJARETNAM, DO. DO. 23. LYSAL, W/O.JAPA PILLAI, DO. DO. 24. CICILET MABEL, W/O.JUSTIN, UDAYATHACHANVILA VEEDU, AYIRA DESOM, AYIRA P.O. KARODE VILLAGE-695312 25. BINDU J.LAL, D/O.JUSTIN, DO. DO. 26. BEENA J.LAL, D/O.JUSTIN, DO. DO. BY ADV. SRI.V.SURESH, R1 TO R16 AND R24 TO 26 BY ADV. SRI.G.SUDHEER, R1 TO R16 AND R24 TO 26

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20-06-2012, 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.771 of 2011

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Dated this 20^th day of June, 2012

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JUDGMENT

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Respondents 1 to 16 and 24 to 26 appear through counsel. Notice to respondents 18 and 20 were returned with the endorsement that they expired. By separate order on I.A.No.1564 of 2012 appellant is exempted from impleading the legal representatives of deceased respondents 18 and 20 in this second appeal, invoking Rule 4(4) of Order XXII of the Code of Civil Procedure (for short, "the Code”). Notice to the 21^st respondent is returned as he left the place. Learned counsel for appellant submits that appellant has not sought relief against the 21^st respondent and hence notice to the 21^st respondent in this second appeal may be dispensed with. The request is allowed. 22^nd respondent has refused to receive the notice. That amounts to sufficient service of notice.

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The following substantial question of law is framed for a decision:

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“Whether on the evidence on record and attending circumstances, first appellate court was justified in not condoning the delay on the applications filed by the appellant under Sec.5 of the Limitation Act?”

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R.S.A.No.771 of 2011

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-: 2 :-

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This appeal arises from the judgment and decree of learned Sub Judge, Neyyattinkara in A.S.Nos.51 and 52 of 2008. Those appeals were dismissed as time barred consequent to the dismissal of I.A.Nos.681 and 682 of 2008, respectively.

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Respondents 1 to 16 an 24 to 26 or their predecessorin-interest filed O.S.No.794 of 2001 in the Court of learned first Additional Munsiff, Neyyattinkara for declaration of title over the suit property and fixation of boundary. Appellant/7^th defendant resisted the suit and made a counter claim seeking declaration of title he claimed over the 16.753 cents. Trial court decreed the suit and dismissed the counter claim. It is against that judgment and decree that appellant filed A.S.Nos.51 and 52 of 2008 with I.A.Nos.681 and 682 of 2008 to condone the delay.

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In the affidavit in support of the said applications it is stated that appellant was laid up with Chicken gunia and hence could not prefer the appeals on time. He thus tried to explain the delay of 179 days in filing the appeals.

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The applications were resisted by the contesting respondents.

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Appellant examined himself as PW1 and proved Ext.A1, medical certificate by examining PW2, the Medical Practitioner (Ayurveda). First appellate court was not impressed by the evidence of PWs.1 and 2 and Ext.A1 and observed that the

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R.S.A.No.771 of 2011

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-: 3 :-

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evidence does not disclose that appellant was immobile and consequently dismissed I.A.Nos.681 and 682 of 2008. Pursuant to that the appeals were also dismissed as time barred.

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Learned counsel for appellant has contended that sufficient cause was shown by the appellant for the delay. But, that was not properly appreciated by the first appellate court. Learned counsel for contesting respondents however supported the order of the first appellate court.

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Learned counsel for appellant has given me a copy of depositions of PWs.1 and 2. Since these appeals could be disposed of with the said records, it is not necessary to call for the entire records from the first appellate court.

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Time and again it has been held that the expression “sufficient cause” occurring in Sec.5 of the Limitation Act must be given a liberal interpretation. True, if by delay the opponent has acquired a vast right, the Court must take that also into account while considering the request for condonation of delay. In this case the delay is only 179days.

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I have gone through the evidence of PWs.1 and 2, the appellant and the physician who issued Ext.A1. That evidence would show that appellant was laid up due to Chicken gunia. There is no reason to disbelieve that evidence of PWs.1 and 2 and Ext.A1. The reason which prevailed upon the first appellate court

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R.S.A.No.771 of 2011

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-: 4 :-

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is that the evidence does not show that appellant was immobile. I am not inclined to think that even if the appellant was not immobile, he should have ventured to go out while undergoing treatment for Chicken gunia and file the appeals. A reasonable approach was required to be taken.

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I am satisfied that the delay is properly explained by the appellant. Substantial question of law framed is answered accordingly.

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The second appeal is allowed as under:

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(i) The order of learned Sub Judge, Neyyattinkara on I.A.Nos.681 and 682 of 2008 and the judgment and decree in A.S.Nos.51 and 52 of 2008 of the said Court are set aside.

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(ii) I.A.Nos.681 and 682 of 2008 will stand allowed.

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(iii) A.S.Nos.51 and 52 of 2008 are remitted to the Court of learned Sub Judge, Neyyattinkara for consideration under Order XLI, Rule 11 of the Code. (iv) Appellant shall appear before the learned Sub Judge on 04.07.2012.

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(v) To avoid delay, respondents can also appear before learned Sub Judge on that day. In case any of the respondents did not appear before the learned Sub Judge, notice shall be issued to them after admission (if any) of the appeals.

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(THOMAS P. JOSEPH, JUDGE)

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Sbna/-

Wilson (Elias) v. Judson @ Johnson & 25 Others

Case brief

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Wilson (Elias) v. Judson @ Johnson & 25 Others

Case brief

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