Remanded

Thomas v. Joseph Vakachan

Kerala HC31 Oct 2016RSA/224/2016

Case brief

AI extract

What is this about?

The High Court granted the appellant a one-month extension to file a certified copy of the order. It set aside the dismissal of the delay condonation application after the appellant paid costs, directing the lower appellate court to dispose of the appeal afresh. The decree below was not quashed but set aside only to the extent of admitting the appeal for merits.

What did the court decide?

The impugned order and judgment were set aside. Appellants were allowed one month to pay Rs. 10,000 costs to the respondent. Lower court to dispose of appeal afresh.

Thomas Vs Joseph Vakachan — Property and Title | Kerala HC (2016)

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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 K.HARILAL

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MONDAY, THE 31ST DAY OF OCTOBER 2016/9TH KARTHIKA, 1938

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RSA.NO. 224 OF 2016 (B)

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AGAINST THE JUDGMENT AND DECREE DATED 21-12-2015 IN A.S. NO.102/2015 OF THE DISTRICT COURT, ALAPPUZHA

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AGAINST THE JUDGMENT AND DECREE DATED 24.10.2011 IN O.S. NO.18/2007 OF THE ADDL.MUNSIFF COURT, ALAPPUZHA

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APPELLANTS/PETITIONERS/DEFENDANTS:

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1. THOMAS, AGED 45 YEARS, S/O. LATE VARGHESE, RESIDING AT VELIYIL HOUSE, CHETHI P.O., ALAPPUZHA.

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2. YESUDAS, AGED 43 YEARS, S/O. LATE VARGHESE, RESIDING AT VELIYIL HOUSE, CHETHI P.O., ALAPPUZHA.

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3. ABHILASH, AGED 38 YEARS, S/O. LATE VARGHESE, RESIDING AT VELIYIL HOUSE, CHETHI P.O., ALAPPUZHA.

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4. MARIYAMMA, AGED 68 YEARS, W/O. LATE VARGHESE, RESIDING AT VELIYIL HOUSE, CHETHI P.O., ALAPPUZHA.

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BY ADVS.SRI.C.V.MANUVILSAN SMT.K.VIDYA

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RESPONDENTS/RESPONDENTS/ PLAINTIFFS:

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1. JOSEPH VAKACHAN, AGED 60 YEARS, S/O. JOSEPH, THOTTUNGAL HOUSE, CHETHI P.O., ALAPPUZHA, REPRESENTED BY HIS WIFE AND ORALLY AUTHORISED AGENT BENNADICT VAKKACHAN, RESIDING AT THOTTUNGAL HOUSE, CHETHI P.O., ALAPPUZHA.

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2. ANTONY, AGED 83 YEARS, S/O. LATE JOSEPH, PUTHENPURACKAL HOUSE, CHETHI P.O., ALAPPUZHA.

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3. CELIN PATHROSE,AGED 62 YEARS, D/O.LATE ANDRAYOSE, ERRASIRIL HOUSE, CHETHI P.O.,ALAPPUZHA.

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R1 BY ADVS. SRI.ROY CHACKO SRI.A.FRANCIS

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 31-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DST

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K. HARILAL, J.

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= = = = = = = = = = = = = = = = = = = = = R.S.A. No.224 of 2016

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- - - - - - -- - - - - - - - - - - - - - - - - - - - Dated this the 31st day of October, 2016

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J U D G M E N T

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The appellants herein are the petitioners in

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I.A. No.1572 of 2016 in A.S. No.102 of 2015 on the files of the District Court, Alappuzha as well as

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the appellants in the above appeal and they are the legal heirs of the deceased 3^rd defendant in O.S. No.18 of 2007 on the files of the Additional Munsiff's Court, Alappuzha, from which the above appeal arose.

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The 1^st respondent filed the above Original Suit, seeking fixation of boundaries, recovery of possession and perpetual injunction. After trial, the trial court decreed the suit, as prayed for. It is the case of the appellants that the disposal of the case was not intimated to the appellants' father. When he contacted the lawyer, his reply was

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R.S.A. No. 224 of 2016

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that though the hearing was over, the court did not

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pass the judgment and it will be informed to him, after receipt of the judgment and decree. When the 3^rd defendant informed the matter to the 1^st defendant, he had undertaken that he shall contact the office of the lawyer and make arrangements to get the judgment and decree, as and when the judgment would be delivered. The father of the appellants alone was aware of the whereabouts of the case and he fell ill and subsequently lost his memory, due to the ailment. On 25.12.2014, the father of the appellants expired, on account of the ailment, due to which he fell ill. The appellants came to know about the judgment and decree in the

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above mentioned Original Suit, only when copy of the impleading petition in E.P. No.16 of 2014 in

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O.S. No.18 of 2007 was served on them in their address, in the year 2015. Immediately, the

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R.S.A. No. 224 of 2016

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-: 3 :-

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appellants made enquiries with the counsel, who conducted the case, but he was not aware of the disposal of the case. Thereafter, the appellants applied for copy of the judgment and received the same on 20.10.2015. The appellants decided to contest the matter on merits and filed the above appeal with the above Interlocutory Application to condone the delay of 1435 days in preferring the appeal.

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The 1^st respondent filed objection, stating that the Original Suit was decreed in the year 2011 and the 3^rd defendant died in the year 2014. He has

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not taken any steps to file appeal against the decree and judgment and the inordinate delay in filing the appeal amounts to gross negligence and default from the part of the appellants. The present application is intended to defeat the execution of the decree passed in favour of the respondents.

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R.S.A. No. 224 of 2016

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-: 4 :-

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After considering the objection, the court below

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dismissed the application, to condone the delay. Consequently, the appeal was also dismissed.

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Heard the learned counsel for the

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appellants and the learned counsel for the 1^st respondent.

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The short question that arises for

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consideration is, whether the court below was justified in dismissing the application to condone the delay as well as the appeal. It stands admitted that the father of the appellants was the original 3^rd defendant, who had conducted the case, while he

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was alive and he died in the year 2014. It is the case of the appellants that they were unaware about

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the whereabouts of the litigation till the death of their father. I do not find any reason to disbelieve

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the aforesaid version, so long as they are not parties to the Suit. They are not supposed to know

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R.S.A. No. 224 of 2016

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-: 5 :-

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the particulars of the case, in which their father alone was a party. Considering the inordinate delay in filing the appeal, I am unable to find fault with the court below in dismissing the Interlocutory Application as well as the appeal. But, I am inclined to take a lenient view in a different perspective. Adjudication of a lis on merits is always desirable than dismissal on technicalities. When substantial justice and technical considerations are pitted against each other, substantial justice deserves to be preferred rather than technical considerations.

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In the above view, the appellants are given one more opportunity to contest the appeal on merits, provided that they are liable to pay cost to the 1^st respondent. Consequently, the impugned order passed in I.A. No.1572 of 2015 and judgment passed in A.S. No.102 of 2015 will stand set aside, on

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R.S.A. No. 224 of 2016

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-: 6 :-

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payment of `10,000/-(Rupees Ten thousand only) to

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the 1^st respondent or his counsel and produce receipt thereof before the lower appellate court, within a period of one month from the date of receipt of a copy of this judgment, failing which the impugned order and judgment will stand in force.

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Needless to say, on compliance with the condition regarding payment of costs, I.A. No.1572 of 2015 will stand allowed and the lower appellate court shall dispose the Appeal afresh, after hearing the parties. The parties shall appear before the lower appellate court on 3^rd January, 2017.

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This Regular Second Appeal is disposed of accordingly.

Sd/-

K. HARILAL,

JUDGE

DST

//True copy//

P.A. To Judge

Thomas v. Joseph Vakachan

Case brief

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Thomas v. Joseph Vakachan

Case brief

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