Allowed

M.G.Prabhan v. Babu

Kerala HC22 Feb 2016RSA/601/2005

Case brief

AI extract

What is this about?

In a second appeal regarding a suit for declaration of title, the High Court of Kerala held that an appellant is not responsible for the laches of their counsel. Consequently, the delay in filing the appeal caused by the lawyer's failure to obtain a certified copy was accepted, and the lower appeal was remitted for fresh disposal.

What did the court decide?

I.A.No.587 of 2004 allowed; A.S.No.70 of 2004 remitted to Sub Court for fresh disposal.

M.G.Prabhan Vs Babu — Civil Procedure and Limitation | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

¶4

MONDAY, THE 22ND DAY OF FEBRUARY 2016/3RD PHALGUNA, 1937

¶5

RSA.No. 601 of 2005

¶6

AGAINST THE JUDGMENT AND DECREE IN A.S.NO.70/2004 AND I.A.NO.587/2004 IN A.S.NO.70/2004 OF SUB COURT, NEYYATTINKARA

¶7

AGAINST THE JUDGMENT AND DECREE IN O.S.NO.577/1999 OF PRINCIPAL MUNSIFF'S COURT, NEYYATTINKARA

¶8

APPELLANT(S)/APPELLANT/PLAINTIFF :

¶9

M.G.PRABHAN, S/O.GOVINDA PANICKER, URIYARIKKUNNU PUTHEN VEEDU, KARUMKULAM DESOM, KARUMKULAM VILLAGE.

¶10

BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR

¶11

RESPONDENT(S)/RESPONDENTS/DEFENDANTS :

¶12

1. BABU, S/O.KRISHNA PILLAI, KULAPPURAKETTIYA VEEDU, PUTHIYATHURA, KARUMKULAM DESOM, KARUMKULAM VILLAGE.

¶13

2. SAROJINI AMMA, W/O.LATE KRISHNA PILLAI, KULAPPURAKETTIYA VEEDU, PUTHIYATHURA, KARUMKULAM DESOM, KARUMKULAM VILLAGE.

¶14

3. BABY, S/O.SAROJINI AMMA, KULAPPURAKETTIYA VEEDU, PUTHIYATHURA, KARUMKULAM DESOM, KARUMKULAM VILLAGE.

¶15

4. BHASI, S/O.KRISHNA PILLAI, KULAPPURAKETTIYA VEEDU, PUTHIYATHURA, KARUMKULAM DESOM, KARUMKULAM VILLAGE. (DIED)

¶16

ADDITIONAL R5 TO R7 IMPLEADED

¶17

5. GEETHA, W/O.LATE BHASI, KULAPPURAKETTIYA VEEDU, PUTHIYATHURA, KARUMKULAM DESOM, KARUMKULAM VILLAGE.

¶18

6. BIJI NANDA, D/O.LATE BHASI, KULAPPURAKETTIYA VEEDU, PUTHIYATHURA, KARUMKULAM DESOM, KARUMKULAM VILLAGE.

¶19

..2/-

¶20

..2..

¶21

RSA.No. 601 of 2005

¶22

7. NANDANA, D/O.LATE BHASI, KULAPPURAKETTIYA VEEDU, PUTHIYATHURA, KARUMKULAM DESOM, KARUMKULAM VILLAGE.

¶23

LEGAL REPRESENTATIVES OF DECEASED 4TH RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 5 TO 7 AS PER ORDER DATED 18.02.2016 IN I.A.NO.419 OF 2015.

¶24

R4 BY ADVS. SRI.L.MOHANAN R5 & R7 BY ADV. SRI.N.K.THANKACHAN

¶25

THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶26

Msd.

¶27

P.B.SURESH KUMAR, J.

¶28

R.S.A. No.601 of 2005

¶29

Dated 22^nd February, 2016.

¶30

J U D G M E N T

¶31

The plaintiff in a suit for declaration of title and possession as also for fixation of boundary, is the appellant in this second appeal.

¶32

The suit was dismissed by the trial court. The plaintiff preferred an appeal challenging the decision of the trial court with a petition to condone the delay of 376 days in filing the appeal. According to the plaintiff, one Adv.G.K.Noble was conducting the suit on his behalf and when he lost the suit, he entrusted the matter to Adv.K.Jayachandran for preferring the appeal. It is stated by the appellant in the affidavit filed in support of the application for condoning the delay that when the matter was entrusted to the new counsel, the certified copy of the decision of the trial court was not received by the appellant and consequently, he entrusted his new counsel to

¶33

RSA No.601 of 2005

¶34

¶35

obtain the certified copy from the court and prefer the appeal. It is also stated by the appellant in the said affidavit that later, on 16.2.2004, when his new lawyer made enquiries about the stage of the certified copy of the trial court judgment, it was revealed that the certified copy of the decision of the trial court has not been applied on behalf of the appellant. Consequently, according to the appellant, a certified copy of the decision of the trial court had to be applied by the new counsel engaged by the appellant and the appeal could be filed only after obtaining the certified copy applied for by the new counsel. It is stated that it is on account of the said reason, the delay of 376 days in filing the appeal occurred. The application was opposed by the respondents in the appeal. According to them, a carbon copy of the decision of the trial court was applied for and obtained by the plaintiff and as such, there is no bonafides in contending that the certified copy of the trial court judgment was not applied for by the appellant.

¶36

The appellate court took the view that in so far as the appellant has applied for and obtained a carbon copy of

¶37

RSA No.601 of 2005

¶38

¶39

the judgment of the trial court, there is no bonafides in contending that there was omission on the part of the appellant in applying for a certified copy of the trial court judgment for the purpose of preferring the appeal. Consequently, the appellate court dismissed the application filed by the appellant seeking orders to condone the delay in filing the appeal. Since the application to condone the delay in filing the appeal was dismissed, the appeal was also dismissed on that basis. The plaintiff is aggrieved by the said decision of the appellate court and hence this second appeal.

¶40

Though the appeal was admitted and

¶41

respondents were issued notice, there is no appearance for the respondents.

¶42

Heard the learned counsel for the appellant.

¶43

The learned counsel for the appellant contended

¶44

that the counsel with whom the matter was entrusted for the purpose of preferring the appeal was under the impression that the appeal could be filed only making use of the certified copy of the decision of the trial court and it is on account of the said

¶45

RSA No.601 of 2005

¶46

¶47

reason that the said lawyer had applied for a certified copy of the judgment of the trial court on behalf of the appellant and the appeal was filed making use of the certified copy obtained by him. According to the learned counsel, though the appeal could have been filed making use of the carbon copy issued from the trial court, the appellant cannot be held responsible for the mistake, if any, committed by his lawyer. He also relied on the decision of the Apex Court in Rafiq v. Munshilal (AIR 1981 SC 1400), wherein, it was held by the Apex Court that as per the present adversary legal system, a party who has selected his advocate, briefed him and paid his fee can remain supremely confident that his lawyer will look after his interest and such a innocent party who has done everything in his power and expected of him, should not suffer for the inaction, deliberate omission or misdemeanour of his counsel.

¶48

In the light of the submission made by the learned counsel for the appellant, the following question was formulated for decision :

¶49

Was the appellate court justified in dismissing

¶50

RSA No.601 of 2005

¶51

¶52

the application filed by the appellant to condone the delay in filing the appeal?

¶53

As noted above, the case of the appellant is that he had entrusted the matter to a lawyer for the purpose of preferring the appeal against the decision of the trial court. It is also his case that he had informed the lawyer to whom the matter was entrusted that the lawyer who appeared for him before the trial court had informed him that he had applied for a certified copy of the decision of the trial court and the appeal can be filed making use of that certified copy. It is his further case that when the lawyer with whom the matter was entrusted made enquiries, it was understood that the lawyer who appeared for the appellant before the trial court did not apply for a certified copy. It is his further case that since the lawyer who appeared for the appellant before the trial court did not apply for a certified copy, the new lawyer had to apply for a certified copy of the decision of the trial court and consequently, the appeal could be filed only after obtaining the said certified copy and it

¶54

RSA No.601 of 2005

¶55

¶56

is on account of the said reason that the delay in filing the appeal occurred. There is nothing on record to indicate that the appellant was aware of the fact that his lawyer before the trial court had not applied for a certified copy of the decision of the trial court. The appellant cannot also be made responsible for the laches, if any, committed by the counsel engaged by him for not preferring the appeal making use of the carbon copy of the judgment obtained on his behalf. It is conceded that in a case of this nature, what is to be seen by the court is as to whether the appellant is guilty of neglect or laches in not filing the appeal on time. As the delay in filing the appeal occurred on account of the mistakes committed by the lawyers engaged by the appellant, according to me, the lower appellate court ought to have accepted the explanation offered by the appellant as sufficient cause for the delay. The question formulated for decision is thus answered in favour of the appellant.

¶57

In the result, the impugned judgment is set aside, I.A.No.587 of 2004 is allowed and A.S.No.70 of 2004 is

¶58

RSA No.601 of 2005

¶59

¶60

remitted to the Sub Court, Neyyattinkara for fresh disposal.

¶61

The second appeal is allowed as above. All the interlocutory applications in the appeal are closed.

¶62

Sd/-

¶63

P.B.SURESH KUMAR, JUDGE.

¶64

tgs

¶65

(true copy)

M.G.Prabhan v. Babu

Case brief

What is this about?

What did the court decide?

M.G.Prabhan v. Babu

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Kabeer Vs Wahab

Johnson Thomas Vs George Mathew

V.Vidhyadharan Vs Vinod

Vilasini Vs Thankam Alias Thankamma

Sndp Sakha Yogam NO.2220 Vs Elanjithanam Devi Samajam

Jose Mathew Vs James Avirah