Dismissed

K.Rajalakshmi v. Assistant General Manager.

Kerala HC8 Nov 2017WA/1900/2017

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a condonation application filed due to an 883-day delay in filing a writ appeal concerning family pension. The court rejected the petitioner's explanation regarding lack of counsel communication and travel difficulties as unbelievable. Finding no sufficient cause for delay, the court dismissed the appeal summarily without examining merits, though it reserved libe

What did the court decide?

C.M.Applno.1129 of 2017 dismissed; W.A.No.1900 of 2017 dismissed for limitation.

K.Rajalakshmi Vs Assistant General Manager. — Civil Procedure and Limitation | 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 P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 8TH DAY OF NOVEMBER 2017/17TH KARTHIKA, 1939 WA.No. 1900 of 2017 () IN WP(C).3352/2009

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AGAINST THE ORDER/JUDGMENT IN WP(C) 3352/2009 of HIGH COURT OF KERALA DATED 25-02-2015

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APPELLANT(S)/PETITIONER.:

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K.RAJALAKSHMI W/O LATE. K.M.NARAYANAN NAIR, SREEVALSOM, MANAPPURATH PARAMBU, FEROKE AMSOM, NALLOOR DESOM, FEROKE PO, KOZHIKODE.

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BY ADVS.SRI.K.K.SATHEESH SRI.THOMSON T.KURICHIYANI

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RESPONDENT(S):RESPONDENTS

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ASSISTANT GENERAL MANAGER. LOCAL HEAD OFFICE, P.P.G DEPARTMENT, S.S KOVIL ROAD, THAMBANOOR, THIRUVANANTHAPURAM.695001.

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THE CHIEF MANAGER, STATE BANK OF INDIA, TELLICHERRY BRANCH, PIN.670101. 3. RAJEEVAN K S/O LATE. NARAYANAN NAIR, KUNNUMMEL HOUSE, THIRUNONEPRAM, THUNDIYIL PO, VALLARAVALLI AMSOM, THIRUVANANTHAPURAM. 695581.

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RADHIKA MANIKUMAR D/O LATE. NARAYANAN NAIR, BHAVANA, THIRUVALLOOR AMSOM, THODANNUR DESOM, THODANUR PO, VADAKARA TALUK, PIN.673543. 5. RAJITHA K D/O LATE. NARAYANAN NAIR, KAILAS, VALLANVELIL AMSOM, THIRUVONEPRAM, THUNDIYIL PO, PIN.695581.

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K. RAJESH`

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S/O RAJESH, S/O LATE. NARAYANAN NAIR, MANAPARAMBATH PARAMBIL, FEROKE AMSOM, NALLOOR DESOM, FEROKE PO, KOZHIKODE, PIN.673001.

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RETHI, D/O LATE. NARAYANAN NAIR, MANAPARAMBATH PARAMBIL, FEROKE AMSOM, NALLOOR DESOM, FEROKE PO, KOZHIKODE DT. PIN.673001.

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R1 AND 2 BY SRI.P.V.SURENDRANATH (SR.) R3 TO R7 BY ADV.V.P.REGHURAJ

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THIS WRIT APPEAL HAVING COME UP FOR ORDERS ON 08-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.N. Ravindran & Devan Ramachandran, JJ.

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- - - - - - - - - - - - - - - - - - - - - -- - -

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C.M.Appl.No.1129 of 2017 and W.A.No.1900 of 2017

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- - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 8^th November, 2017

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JUDGMENT

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Devan Ramachandran, J.

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C.M.Appl.No.1129 of 2017 has been filed by the petitioner praying that the delay of 883 days in filing Writ Appeal No.1900 of 2017 be condoned. In support of the application, the petitioner has sworn to an affidavit dated 31.8.2017 wherein the reasons for the delay has been explained as under:

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“2. The above writ appeal is filed against the judgment dated 25.2.2015 in W.P.(C) No.3352/2009 passed by this Hon'ble Court. The said writ petition is filed for directing respondents 1 and 2 to disburse family pension due to me with respect of my later husband K.M.Sri.Narayanan Nair, who retired as the Deputy Manager from the State Bank of India on 30.6.1996.

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The judgment was pronounced in the writ petition as early as on 25.2.2015. It is submitted that my counsel R.Ranjini did not inform me about the dismissal of the above writ petition.

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I am now aged 70 and am in the evening of my life. I find it very difficult to travel all the way long from Kozhikode to Ernakulam to contact my counsel. When I have contacted the said counsel during the 2^nd week of August,2017 I came to know that the above Writ petition was dismissed by this Hon'ble Court. Hence I could not file the above Writ Appeal in time. Thereupon, I have engaged the present counsel who has applied for the

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C.M.Appl.1129/17 & WA 1900/2017

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certified copy of the aforesaid judgment on 14.8.2017 and received the same on 18.8.2017. Hence there is a delay of 883 days in filing the above Writ Appeal.

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There is no wilful default or laches on my part in not filing the above Writ Appeal in time.”

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We heard the learned counsel for the petitioner and we have examined the affidavit sworn to by the petitioner.

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A reading of the affidavit would make indubitable that hardly any reason has been given by the petitioner in seeking to condone the large amount of delay. All that she says is that she was not aware of the dismissal of the writ petition and that she was finding it difficult to travel from Kozhikode to Ernakulam to contact her counsel. This averment, to say the least, is completely unbelievable since in these days of modern communication facilities it would not require the petitioner to travel physically to Kochi to contact her counsel. Her own averments make it clear that she had not been prosecuting the writ petition diligently and that she was not even aware of the dismissal of the writ petition except when she came to know of it some time in the second week of August, 2017. When the delay is so much and going by the binding precedents of the Honourable Supreme Court in several judgments, we do not think that the petitioner could have chosen to be so casual in approaching this court with an application to condone the

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C.M.Appl.1129/17 & WA 1900/2017

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delay by making averments which are, on the face of it bereft of credibility. Normally we would have been justified in dismissing this application and thus dismissing the appeal. However, to ensure that the petitioner is not prejudiced on account of the dismissal of her claim on the ground of limitation, we have also examined the grounds raised in the appeal.

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The case of the appellant is that she is the second wife of Sri.Sri.Narayanan Nair who died after retirement from the State Bank of India in the year 1996. The appellant claims to have been married to Sri.Sri.Narayanan Nair as per customary rites, at Guruvayoor Temple on 10.11.1970 and she says that she was residing with him until his death in the year 2006. On such basis, she applied for family pension consequent on the death of Sri.Narayanan Nair which was, however, rejected by the Bank holding that the nomination made by Sri.Narayanan Nair for family pension before he retired, showed the name of Smt.K.Lakshmi who is stated to be his wife. The Bank maintained that the pension of Sri.Narayanan Nair was sanctioned as per Order No.CT/SBI/PEN/63 dated 24.12.1997 wherein the nominee has been shown as Smt.Lakshmi. The Bank says that the said name continues in the papers even now. We notice that the son of Sri.Narayanan Nair, who is the third respondent herein, has filed a

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C.M.Appl.1129/17 & WA 1900/2017

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counter affidavit wherein he categorically asserts that his father had only one wife by name Smt.Lakshmi Amma, who is his mother and that the marriage of his parents was in the year 1962. He denies the assertion of the appellant that the marriage between Sri.Narayanan Nair and Smt.Lakshmi Amma was dissolved and he assrts that Smt.Lakshmi Amma continued to be the wife of Sri.Narayanan Nair, until her death in the year 2004.

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Sri K.K.Satheesh, learned counsel appearing for the appellant points to Ext.P1 succession certificate and says that the name of the appellant has been shown therein to be one of the heirs of late Sri.Narayanan Nair. He says that her claim for family pension is thus founded on Ex.P1 and according to him, the assertions of the respondents that she is not the wife of Sri.Narayanan Nair would completely fall going by Ext.P1 alone.

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While examining this contention, we notice that the third respondent in his counter affidavit has explained why Ext.P1 was obtained and has also stated the reasons leading to the application for succession certificate to be made. The third respondent says that just before the death of Sri.Narayanan Nair his children, including himself, came to be aware that while he was working at Kozhikode, he had some relationship with the appellant and that to avoid any further

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C.M.Appl.1129/17 & WA 1900/2017

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disputes between them he had agreed to have Ext.P1 certificate applied for and obtained. He categorically says that it was only in order to avoid litigation that they had agreed to file a joint petition for succession certificate. He also goes to say that it was only for the purpose of withdrawing certain amounts standing in the credit of his deceased father and also to open the locker mentioned in Ext.P1 that Ext.P1 was obtained.

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It is pertinent that the application leading to Ext.P1 has been filed only after Smt.Lakshmi Amma died in the year 2004. Therefore, even going by Ext.P1 it would not be sufficient evidence to show that the appellant is the legally wedded wife of late Sri.Narayanan Nair. The question before us is whether we can compel the Bank to act upon an unsubstantiated claim made by the appellant when the factum of her marriage with Sri.Narayanan Nair has not been conclusively proved. It is also important that the alleged dissolution of marriage between Sri.Narayanan Nair and Smt.Lakshmi Amma has not been proved and the fact remains that in the papers submitted by Sri.Narayanan Nair for pension prior to his death, the name of Smt.Lakshmi Amma has been shown as his wife.

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From the judgment impugned in this appeal, we see that the learned single Judge has acted with great care and caution because

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C.M.Appl.1129/17 & WA 1900/2017

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the learned Judge has recorded that the factual questions regarding the marriage or otherwise of the appellant with Sri.Sri.Narayanan Nair are matters which will have to be proved by her by leading adequate evidence and materials, before the court of competent jurisdiction. The learned single Judge has only said that such facts, particularly when they are so hotly contested, cannot be adjudicated in a petition filed under Article 226 of the Constitution of India. We are in complete affirmation of the view taken by the learned single Judge and we are also certain that while this court acts under Article 226 of the Constitution of India we are proscribed from entering into or delving into consideration of factual factors especially when it requires evidence and facts to be pleaded and established.

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In such view of the matter, taking into account the fact that the delay that is sought to be condoned is over 883 days, for which we find no cause at all, much less sufficient cause, as having been shown by the appellant, we do not deem it necessary to condone the same or to consider the appeal on its merits.

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In such circumstances, C.M.Appln.No.1129 of 2017 is dismissed. Consequently W.A.No.1900 of 2017 will also stand dismissed as being hit by limitation.

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Needless to say, the liberty granted to the appellant by the

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C.M.Appl.1129/17 & WA 1900/2017

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learned single Judge, to approach a civil court for obtaining an appropriate declaration, will continue to be available to the appellant and we make it clear that we have not in any manner impeded such remedies available to her.

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(P.N. Ravindran, Judge)

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(Devan Ramachandran, Judge)

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kav/

K.Rajalakshmi v. Assistant General Manager.

Case brief

What is this about?

What did the court decide?

K.Rajalakshmi v. Assistant General Manager.

Case brief

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