This High Court dismissed an application to condone a 1505-day delay in filing a matrimonial appeal. The Court held that the petitioner's alleged bona fide mistake regarding her counsel's instructions was unsubstantiated and insufficient to justify such an inordinate delay.
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 ANTONY DOMINIC
&
THE HONOURABLE MR. JUSTICE P.D.RAJAN
MONDAY, THE 19TH DAY OF AUGUST 2013/28TH SRAVANA, 1935
Mat.Appeal.No. 186 of 2013 ()
AGAINST THE ORDER/JUDGMENT IN OP 964/2007 of FAMILY COURT, KOTTAYAM AT ETTUMANOOR
APPELLANT/PETITIONER :
ELAMMA @ ALEYAMMA W/O. JOSEKUTTY, ELAVANAL(CHATHANATTU) HOUSE KANIYAKKAD KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK KOTTAYAM DISTRICT.
BY ADVS.SRI.C.P.PEETHAMBARAN
SMT.V.A.MINI
RESPONDENT(S)/RESPONDENT :
JOSEKUTTY @ JOSE, AGED 48 YEARS S/O. MATHAI, ELAVANAL (CHATHANATTU) HOUSE KANIYAKKAD KARA, PULIYANNOOR VILLAGE, VELLICHIRA P.O. MEENACHIL TALUK, KOTTAYAM DISTRICT-686573.
R1 BY ADV. SRI.N.UNNIKRISHNAN R1 BY ADV. SRI.C.JAYACHANDRAN (KAYAMKULAM)
THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 19-082013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ANTONY DOMINIC & P.D.RAJAN, JJ. ======================== C.M.Appln.No.616 OF 2013 &
Mat. Appeal No. 186 OF 2013 =======================
Dated this the 19th day of August, 2013
J U D G M E N T
Antony Dominic, J.
C.M.Appln.No.616/13 is an application filed for condonation of delay of 1505 days in filing this appeal. The petitioner filed OP No.964/07 before the Family Court, Kottayam at Ettumanoor. That OP was dismissed by judgment dated 13th of October, 2008. Going by the petitioner's own averments, the appeal should have been filed on or before 12/1/2009. Instead, this appeal has been presented only on 5/3/13 along with this application to condone 1505 days delay. The reason stated by the petitioner is that on the pronouncement of the order by the Family Court, she approached her counsel before the Family Court and requested him to make arrangements for filing an appeal without either executing a vakalath or even paying necessary fee. She says that she assumed that the counsel would have filed the appeal through his counter part and that later, when her counsel who appeared in Mat.Appeal No.108/11 enquired with her, then only
C.M.Appln.No.616 OF 2013
&
Mat. Appeal No. 186 OF 2013
: 2 :
she realised that the appeal was not filed. Therefore, she says that delay has occurred on account of a bona fide mistake and has sought its condonation.
condonation of delay is contained in paragraphs 4 and 5 of the affidavit, which reads thus;
4. It is most respectfully submitted that after getting the certified copy I approached my counsel in the Court below and requested him to make arrangement for filing the appeal. But now I remember that I did not execute vakalath or entrusted the expenses for filing appeal. I was under the bonafide impression that the counsel had made arrangement to file the appeal and accordingly appeal might have been filed through his associate, practicing at High Court. In the meanwhile, I have filed another appeal against a judgment allowing partition as Mat.Appeal No.108/201 before this Hon'ble Court and appeared before the Lok Adalath on two three occasions. When the mediation failed, my present counsel asked to me whether I have filed any appeal against the impugned order in this appeal. Thereafter I approached my counsel before the Lower Court and enquired about the progress of the appeal and at that point of time my counsel at the Lower Court
C.M.Appln.No.616 OF 2013 &
Mat. Appeal No. 186 OF 2013
: 3 :
said that he had not entrusted the matter to file appeal as there was no execution of vakalath and other requirements. The Counsel was under the bonafide belief that I myself might have filed the appeal before this Hon'ble Court against the impugned order and that may be the reason I did not chosen to enquire about the stage of the further proceedings.
5. I really came to understand that the appeal against the impugned order was not filed till today. It is a bonafide mistake and a mis-calculation inadvertently happened. I am not benefited by filing this appeal belatedly in any manner. In the meanwhile I received notice from the Family court, Kottayam at Ettumanoor in a petition filed by the respondent for lifting the attachment passed in the above O.P. Due to the above reason as on date there is a delay of 1505 days filing the appeal before this Hon'ble Court. There is no willful laches or negligence on my part for the above delay, as this was happened only due to the above reason. I have a good case in the appeal and I am advised that there is every chance of succeeding the appeal. Hence if the delay of 1505 days is not condoned by this Hon'ble Court, I will be put to untold hardships, loss and injury.
C.M.Appln.No.616 OF 2013
& Mat. Appeal No. 186 OF 2013
: 4 :
claims, which in our view are insufficient to condone 1505 days delay as sought for by the petitioner.
C.M.Appln is therefore dismissed. Consequently, appeal will
also stand dismissed.
Sd/- ANTONY DOMINIC, Judge
Sd/- P.D.RAJAN, Judge
Rp
//True Copy//
PA TO JUDGE
3 issues framed by the court
Whether the delay of 1505 days in filing the matrimonial appeal is excusable and warrants condonation.
Whether the petitioner's alleged bona fide mistake regarding the instruction to counsel justifies condoning the inordinate delay.
Whether the application for condonation of delay should be allowed given the lack of substantiating evidence.
ELAMMA @ ALEYAMMA W/O. JOSEKUTTY
JOSEKUTTY @ JOSE
ANTONY DOMINIC
P.D. RAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
