Dismissed

Rajan Achary v. T.T. Lakshmanan Achary

Kerala HC5 Jan 2017RSA/700/2016

Case brief

AI extract

What is this about?

This regular second appeal challenged the dismissal of an application to condone a 743-day delay in filing a second appeal regarding a property partition suit. The court held that the appellant's affidavit lacked necessary specifics regarding his ailment and the timeline for obtaining the judgment copy, indicating a lack of bona fides.

What did the court decide?

The regular second appeal was dismissed; judgments of the courts below were affirmed.

Rajan Achary Vs T.T. Lakshmanan Achary — Succession and Inheritance | Kerala HC (2017)

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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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THURSDAY, THE 5TH DAY OF JANUARY 2017/15TH POUSHA, 1938

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RSA.No. 700 of 2016 (G)

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AGAINST THE ORDER DATED 18-1-2016 IN IA 875/2014 IN AS 119/2014 OF PRINCIPAL DISTRICT COURT, KOTTAYAM.

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AGAINST THE ORDER DATED 28-9-2011 IN IA 399/2010 IN OS.213/2006 of PRINCIPAL SUB COURT, KOTTAYAM

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APPELLANT/APPELLANT/DEFENDANT :

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RAJAN ACHARY, AGED 65 YEARS, S/O. THANKAMANI ACHARY RESIDING AT THANNIKKATTU HOUSE, S.H.MOUNT P.O. NATTASSERY KARA, PERUMBAIKADU VILLAGE, KOTTAYAM TALUK.

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BY ADV. SRI.V.N.SASIDHARAN

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RESPONDENTS/RESPONDENTS/PLAINTIFFS :

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1. T.T. LAKSHMANAN ACHARY,

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AGED 64 YEARS, S/O. THANKAMANI ACHARY THANNIKATTU HOUSE, S.H.MOUNT P.O., NATTASSERY KARA, PERUMBAIKADU VILLAGE, KOTTAYAM TALUK-686 006.

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2. AMMINI AMMAL, AGED 63 YEARS, D/O. THANKAMANI ACHARY THANNIKATTU HOUSE, S.H.MOUNT P.O., NATTASSERY KARA PERUMBAIKADU VILLAGE, KOTTAYAM TALUK-686 006.

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3. P.T.THANKAMMAL, AGED 62 YEARS, D/O. THANKAMANI ACHARY THANNIKATTU HOUSE, S.H.MOUNT P.O., NATTASSERY KARA PERUMBAIKADU VILLAGE, KOTTAYAM TALUK-686 006.

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4. T.T.GOPALAKRISHNAN, AGED 60 YEARS, S/O. THANKAMANI ACHARY THANNIKATTU HOUSE, S.H.MOUNT P.O., NATTASSERY KARA PERUMBAIKADU VILLAGE, KOTTAYAM TALUK-686 006.

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5. T.T.KRISHNANKUTTY , AGED 55 YEARS, S/O. THANKAMANI ACHARY THANNIKATTU HOUSE, S.H.MOUNT P.O., NATTASSERY KARA PERUMBAIKADU VILLAGE, KOTTAYAM TALUK-686 006.

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......2/-

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RSA.No. 700 of 2016 (G) 2

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6. T.T.RADHAMMAL, AGED 49 YEARS, D/O. THANKAMANI ACHARY THANNIKATTU HOUSE, S.H.MOUNT P.O., NATTASSERY KARA PERUMBAIKADU VILLAGE, KOTTAYAM TALUK-686 006.

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7. T.T.AMBIKA , AGED 48 YEARS, D/O. THANKAMANI ACHARY THANNIKATTU HOUSE, S.H.MOUNT P.O., NATTASSERY KARA PERUMBAIKADU VILLAGE, KOTTAYAM TALUK-686 006.

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8. T.T.MOHANAN, AGED 48 YEARS, S/O. THANKAMANI ACHARY THANNIKATTU HOUSE, S.H.MOUNT P.O., NATTASSERY KARA PERUMBAIKADU VILLAGE, KOTTAYAM TALUK-686 006.

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9. T.T.PRADEEPKUMAR , AGED 47 YEARS, S/O. THANKAMANI ACHARY THANNIKATTU HOUSE, S.H.MOUNT P.O., NATTASSERY KARA PERUMBAIKADU VILLAGE, KOTTAYAM TALUK-686 006.

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10. K.C.SANTHAMMAL, AGED 57 YEARS, D/O. CHELLAPPANNACHARI THANNIKATTU HOUSE, S.H.MOUNT P.O., NATTASSERY KARA PERUMBAIKADU VILLAGE, KOTTAYAM TALUK-686 006.

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11. T.L.SYAMLAL , AGED 25 YEARS, S/O.LAKSHMANAN ACHARY, THANNIKATTU HOUSE S.H.MOUNT P.O., NATTASSERY KARA, PERUMBAIKADU VILLAGE KOTTAYAM TALUK-686 006.

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12. OMANA AMMAL, AGED 50 YEARS, D/O. PARAMESWARAN ACHARY THANNIKATTU HOUSE, S.H.MOUNT P.O., NATTASSERY KARA PERUMBAIKADU VILLAGE, KOTTAYAM TALUK-686 006.

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13. SREEDEVI AGED 15 YEARS, D/O. GOPALAKRISHNAN ACHARY THANNIKATTU HOUSE, S.H.MOUNT P.O., NATTASSERY KARA, NATTASSERY,PERUMBAIKADU VILLAGE, KOTTAYAM TALUK-686006. 14. SREELAKSHMI AGED 13 YEARS, D/O. GOPALAKRISHNAN ACHARY THANNIKATTU HOUSE, S.H.MOUNT P.O., NATTASSERY, PERUMBAIKADU VILLAGE KOTTAYAM TALUK-686 006.(13TH AND 14TH RESPONDENTS REPRESENTED BY 12TH RESPONDENT OMANA AMMAL).

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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okb

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K.HARILAL, J.

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_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

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R.S.A. No.700 of 2016

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_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

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Dated this the 5^th day of January, 2017

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JUDGMENT

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~ ~ ~ ~ ~ ~ ~

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The appellant herein was the defendant in O.S.No.213/2006 on the files of the Principal Sub Court, Kottayam and the appellant in A.S.No.119/2014 of the Principal District Court, Kottayam. The respondents were plaintiffs before the trial court and the suit was filed for partition of the plaint schedule property, having an extent of 29.5 cents, by 100 equal shares. The preliminary decree was passed on 7.8.2009 allotting 11/100 share to the plaintiffs and 1/100 share to the defendant. Thereafter, final decree was also passed allotting the respective shares to each sharer. Aggrieved by the final judgment and decree, the defendant filed A.S.No.119/2014 before the Principal District Court, Kottayam, with I.A.No.875/2014 to condone the delay of 743 days in filing the appeal. After

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RSA.700/16 -G :2:

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considering the cause of delay, the appellate court dismissed the said application to condone the delay and consequently the appeal was rejected. This Regular Second Appeal is filed challenging the dismissal of the application to condone the delay as well as rejection of the appeal thereunder.

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Heard the learned counsel for the appellant.

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In the application to condone the delay, it is the case of the appellant that he attained the age of 65 years and was laid up for the last so many years under treatment. Meanwhile, copies of judgment and decree were found missing and he traced the same on 20.12.2013 only and caused a delay of 743 days in filing the appeal.

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The 2^nd respondent filed objection contending that the appeal is highly belated and there is no sufficient reason to condone the delay. It is also contended that there is no bona fides in the application and the sole intention is to drag on the proceedings.

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The short question that arises for consideration in

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RSA.700/16 -G :3:

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this Appeal is, whether the lower appellate court is justified in dismissing the application to condone the delay of 743 days in filing the appeal. The preliminary decree was passed on 7.8.2009 and the plaint schedule property having an extent of 29.5 cents was partitioned into 100 equal shares of which the respondents were allotted 11/100 each. The reason for delay is that he is aged and laid up under treatment. But, the particulars of the disease for which he was laid up or the treatments under which he had undergone have not been disclosed in the affidavit. So also, there is no averments as regards the date on which he had applied for certified copy of the judgment and decree and the date on which the copy was delivered to him. Thus, the affidavit lacks necessary pleadings to substantiate the cause of delay and it shows lack of bona fides in the cause of delay alleged in the petition. It appears that the reason for delay is a concocted one.

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In the above view, the courts below are justified in dismissing the application to condone the delay. I do not

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RSA.700/16 -G :4:

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find any kind of illegality or perversity in the cause of delay for filing the appeal. There is no reason to interfere with

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the order passed in I.A. No.875/2014 in A.S.No.119/2014 and the judgment and decree dismissing A.S.No.119/2014. Hence this Regular Second Appeal is dismissed.

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All pending interlocutory applications will stand closed.

Sd/-

K.HARILAL,

Judge.

dst/okb

Rajan Achary v. T.T. Lakshmanan Achary

Case brief

What is this about?

What did the court decide?

Rajan Achary v. T.T. Lakshmanan Achary

Case brief

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