Dismissed

Purushothaman v. Chellamma

Kerala HC9 Aug 2012RSA/773/2011

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a second appeal against a preliminary partition decree. The court held that the appellants failed to show sufficient cause for the inordinate delay of 1136 days, as their pleaded reasons regarding their counsel's death were contradicted by the evidence.

What did the court decide?

The second appeal was dismissed and all pending interlocutory applications were dismissed.

Purushothaman Vs Chellamma — Partition | 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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THURSDAY, THE 9TH DAY OF AUGUST 2012/18TH SRAVANA 1934

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RSA.NO. 773 OF 2011 ( )

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------------------------------------I.A. NO.554 OF 2009 IN AS.65/2009 OF FIRST ADDITIONAL DISTRICT COURT, MAVELIKKARA OS.273/2002 OF MUNSIFF'S COURT,HARIPAD

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APPELLANTS/APPELLANTS/DEFENDANTS 1, 2 & 9:

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1. PURUSHOTHAMAN,AGED 58 YEARS, S/O.MADHAVAN, KALLINTE KIZHAKKATHIL MUTHUKULAM VADAKKE MURI, MUTHUKULAM VILLAGE ALAPPUZHA

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2. KAMALASANAN, AGED 53 YEARS, S/O.MADHAVAN, KALLINTE KIZHAKKATHIL MUTHUKULAM VADAKKE MURI, MUTHUKULAM VILLAGE ALAPPUZHA

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3. MALATHI, D/O.KUTTY, KALLINTE KIZHAKKATHIL, MUTHUKULAM VADAKKE MURI MUTHUKULAM VILLAGE,ALAPPUZHA

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BY ADVS.SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN SMT.T.J.SEEMA

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RESPONDENTS/RESPONDENTS/PLAINTIFFS & DEFENDANTS 3 TO 8:

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1. CHELLAMMA,AGED 51 YEARS, D/O.KUNJI, KURASSERIL KANDATHIL MUTHUKULAM THEKKUM MURI, MUTHUKULAM VILLAGE ALAPPUZHA-690560

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2. BINDU,30 YEARS,D/O.CHELLAMMA KURASSERIL KANDATHIL, MUTHUKULAM THEKKUM MURI MUTHUKULAM VILLAGE, ALAPPUZHA-690560

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R.S.A. No.773 of 2011

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3. BINU,AGED 28 YEARS,S/O.BABU, KURASSERIL KANDATHIL, MUTHUKULAM THEKKUM MURI MUTHUKULAM VILLAGE, ALAPPUZHA-690560

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4. SUDHAKARAN, S/O.MADHAVAN, MANAPPALIKIZHAKKATHIL,KUTHUKULAM VADAKKUM MURI MUTHUKULAM VILLAGE,ALAPPUZHA-690560

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5. BHAVANI,MANAPPALLIL VEEDU, MUTHUKULAM VADAKKUM MURI, MUTHUKULAM VILLAGE ALAPPUZHA-690560

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6. ANIL,S/O.ANIRUDHAN, MANAPPALLIL VEETTIL MATHUKULAM VADAKKUM MURI, MUTHUKULAM VILLAGE ALAPPUZHA-690560

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7. SHEEJA, D/O.BHAVANI, MANAPPALLIL VEETTIL MUTHUKULAM VADAKKUM MURI, MUTHUKULAM VILLAGE ALAPPUZHA-690560

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8. ANUSHA,D/O.BHAVANI, MANPPALLIL VEETTIL, MUTHUKULAM VADAKKUM MURI MUTHUKULAM VILLAGE, ALAPPUZHA-690560

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9. RETHNAMMA, D/O.KUTTY, AMBALATHINU CHOORAYIL,MELOOTU POST,ADOOR VILLAGE PIN-691523

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BY ADV. SRI.B.RENJITHKUMAR R1 to R3 BY ADV. SRI.R.SUNIL KUMAR BY ADV. SMT.A.SALINI LAL R5 TO R8

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 09-08-2012, 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.773 of 2011

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

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Dated this the 09^th day of August, 2012

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J U D G M E N T

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The Second Appeal arises from the judgment and decree of the First Additional District Court, Mavelikara in A.S. No.65 of 2009 dismissing that appeal as time barred for the reason of dismissal I.A. No.554 of 2009 to condone the delay.

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That appeal arose from the preliminary decree for partition passed by the Munsiff's court, Harippad in O.S. No.273 of 2002. Appellants-defendants 1, 2 and 9 challenged that preliminary decree on various grounds. Since there was a delay of 1136 days in filing the appeal, appellants filed I.A. No.554 of 2009. On that application the 1^st appellant was examined as P.W.1. Contesting respondents proved Exts.B1 to B3. The first appellate court found that the reasons stated for condonation of delay are not true, the inordinate delay is not explained and consequently dismissed I.A. No.554 of 2009. That followed dismissal of the appeal as time barred.

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It is contended by the learned counsel for the

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R.S.A. No. 773 of 2011

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appellants that the delay is properly explained through the evidence of P.W.1. It is also submitted that the first appellate court ought to have shown the discretion in the matter of condonation of delay in favour of the appellants.

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The learned counsel for the contesting respondents has opposed the prayer.

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As per Section 5 of the Limitation Act delay could be condoned only when sufficient cause is shown. Going by the wordings of the said provision the discretionary power of the court to condone the delay arises only when sufficient cause is shown (See Ramlal and Others v. Rewa Coalfields Ltd. - AIR 1962 SC 361 ). Therefore it is obligatory for the appellants to have shown sufficient cause for not filing the appeal on time.

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In I.A. No.554 of 2009 the prayer is to condone the delay of 1136 days. The reason for the delay is that the counsel engaged by the appellants in the trial court had agreed to file the appeal but that could not be done as the counsel expired. Apparently that may appear to be a justifiable reason for

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R.S.A. No. 773 of 2011

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condonation of the delay. But the evidence of P.W.1 would stand against that. Though P.W.1 claimed that he was not in station, he admitted that other appellants were available at the station so that they could have enquired whether the counsel who had agreed to file the appeal had actually done so.

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Assuming that the appellants were unaware of death of the counsel who appeared for them in the trial court, though P.W.1 stated that the appellants had not taken part in the final decree proceeding, it has come in evidence that respondents 1 to 3 had filed application on 20.07.2007 for passing the final decree and that application was vehemently contested by the appellants. P.W.1 claimed that he had not engaged a counsel to appear in the final decree proceeding but Exts.B1 to B3 disproved that. Exhibit B1 is the copy of the application filed by P.W.1 on 21.07.2010 through Advocate P.Aravindan to set aside the report and plan submitted by the Advocate Commissioner in the final decree proceeding. Exhibit B2 is the copy of proceedings paper on the application for passing the final decree which shows that appellants appeared in that proceeding in July, 2007 (which was even before death of the counsel who appeared for the

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R.S.A. No. 773 of 2011

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appellants in the trial side). Exhibit B3 is the copy of objection P.W.1 preferred on 03.09.2010 to the application for passing the final decree. Therefore claim of the appellants that they had not taken part in the final decree proceeding is found to be untrue.

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It is difficult to think that even while taking part in the final decree proceeding and vehemently opposing that application and the report and plan submitted by the Advocate Commissioner, appellants were unaware of death of their counsel in the trial court or that no appeal had been preferred against the preliminary decree. That plea of the appellants was rightly negatived by the first appellate court which I find no reason to interfere.

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When a statement is made by appellants as the reason for condonation of delay and that statement is found to be not true, the question of exercising discretionary jurisdiction also does not arise.

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In the above situation I am inclined to agree with the decision of the first appellate court that the inordinate delay in

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R.S.A. No. 773 of 2011

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filing the appeal is not explained. On the other hand, it is revealed that the reasons stated by the appellants are not true.

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In view of that I do not find any substantial question of law involved in this appeal requiring a decision by this Court.

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Second Appeal is dismissed.

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All pending Interlocutory Applications will stand dismissed.

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THOMAS P. JOSEPH, JUDGE.

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vsv

Purushothaman v. Chellamma

Case brief

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Purushothaman v. Chellamma

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