This court dismissed a Regular Second Appeal filed by a plaintiff challenging the dismissal of a partition suit for non-prosecution. The High Court held there was no substantial question of law under Section 100 CPC and dismissed the appeal in limine.
Second Appeal dismissed in limine. No costs awarded.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
WEDNESDAY, THE 22ND DAY OF NOVEMBER 2023 / 1ST
AGRAHAYANA, 1945
RSA NO. 989 OF 2012
AGAINST THE JUDGMENT AND DECREE DATED 23.02.2012 IN AS
143/2010 OF DISTRICT COURT, ERNAKULAM
ARISING OUT OF JUDGMENT IN OS 54/2002 OF II ADDITIONAL
MUNSIFF COURT, ERNAKULAM
APPELLANTS/APPELLANTS/PLAINTIFFS:
1 MUKUNDAN MENON (DIED) S/O.MEENAKSHI AMMA,2 INDIRA, W/O.LATE MUKUNDAN MENON AGED 65 YEARS, THOTTUNGAL HOUSE, POONITHURA VILLAGE, POONITHURA DESOM, KANAYANNUR NOW RESIDING AT AANADAVIHAR, AYROOR KARA, KUNNUKARA P.O.3 NARENDRANATH, S/O.LATE MUKUNDAN MENON AGED 37 YEARS, THOTTUNGAL HOUSE, POONITHURA VILLAGE, POONITHURA DESOM, KANAYANNUR NOW RESIDING AT AANADAVIHAR, AYROOR KARA, KUNNUKARA P.O.4 JAYACHANDRAN S/O.LATE MUKUNDAN MENON, AGED 34 YEARS, THOTTUNGAL HOUSE, POONITHURA VILLAGE, POONITHURA DESOM, KANAYANNUR NOW RESIDING AT AANADAVIHAR, AYROOR KARA, KUNNUKARA P.O.5 VIJAYACHANDRAN SO.LATE MUKUNDAN MENON AGED 34 YEARS, THOTTUNGAL HOUSE, POONITHURA VILLAGE, POONITHURA DESOM, KANAYANNUR NOW RESIDING AT AANADAVIHAR, AYROOR KARA, KUNNUKARA P.O.BY ADV SRI.M.B.NANUTHAMBI
RESPONDENTS/RESPONDENTS/DEFENDANTS:
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1 SANKUNNY MENON (DIED)S/O.GOVINDA MENON2 SAROJINI AMMA D/O.GOVINDAMENON (DIED)3 BAVANIKUTTY AMMA D/O.GOVINDAN MENON AGED 66 YEARS, RESIDING AT VADAKKAECKONATHPRAMBU, POONITHURA DESOM, POONITHURA VILLAGE, KANAYANNOOR TALUK. 6820384 SREEDHARAN MENON S/O.BHARGAVI AMMA (DIED),5 RAJALEKSHMI D/O.SAROJINI AMMA, VADAKKAECKONATHPARAMBU, POONITHURA DESOM, POONITHURA VILLAGE, KANAYANNOOR TALUK.PIN 6820386 RAJEEV S/O.SAROJINI AMMA BY THEIR POWER HOLDER RAJEEVAN, S/O.S.R.K.MENON, VYLOPILLY, KALOOR.PIN 682 0177 SARADA W/O.SREEDHARA MENON “SANKALPA“ THOTTUNGAL HOUSE, POONITHURA DESOM, POONITHURA VILLAGE, KANAYANNOOR TALUK. 6820388 RAJASREE D/O.SREEDHARA MENON “SREERAGAM“, THOTTUNGAL HOUSE, POONITHURA DESOM, POONITHURA VILLAGE, KANAYANNOOR TALUK.6820379 RAJESH MENON S/O.SREEDHARA MENON, SANKALPA, THOTTUNGAL HOUSE, POONITHURA DESOM, POONITHURA VILLAGE, KANAYANNOOR TALUK.68203710 KALYANIKUTTY AMMA D/O.MEENAKSHI AMMA, THOTTUNGAL HOUSE, POONITHURA DESOM, POONITHURA VILLAGE, KANAYANNOOR TALUK.682037BY ADVS.
RENJITH B.MARAR
LAKSHMI.N.KAIMAL
P.RAJKUMAR
KESHAVRAJ NAIR
ARUN POOMULLI
PREETHA S CHANDRAN
ABHIJITH SREEKUMAR
ANAND REMESH
ABHIRAM.S.
C.R.REKHA
RSA No. 989 of 2012
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THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 22.11.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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K. BABU, J
R.S.A. No. 989 of 2012
Dated this the 22nd day of November, 2023
JUDGMENT
Appellant No.1 is the plaintiff in O.S.No.54/2002 on
the file of the Addional Munisff's Court, Ernakulam. He filed the Original Suit for the partition of the plaint schedule property.
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RSA No. 989 of 2012
remained absent on 06.02.2009 and filed an application seeking adjournment on medical ground. The case was adjourned for examination of the plaintiff to 18.02.2009. As the plaintiff was not present, the case was again adjourned to 21.02.2009, on which date the plaintiff again failed to appear and file any proof affidavit. The suit was again dismissed.
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material question violates the settled position of law. In the present case, on multiple occasions, appellant No.1/ plaintiff failed to appear before the Trial Court as well as the First Appellat Court and prosecute the matter. Oringally, when the suit was listed for trial on 21.02.2009, appellant No.1/plantiff failed to appear and file proof affidavit as required. There was not even a representation for the appellant. The appellant then filed an application seeking restoration of the suit. The said application was also dismissed for non-prosecution. Then appellant No.1 filed another IA seeking restoration of the application filed under Order 9 Rule 9, CPC. That application was allowed and the Trial Court listed the case on 06.02.2009 for trial including the same in the special list. On 06.02.2009, appellant No.1 filed an application to remove the case from the special list on medical grounds. The Court granted adjournment and posted the matter to 18.02.2009. Appellant No.1/plaintiff was absent on 18.02.2009. The case was again adjourned to
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21.02.2009. On 21.02.2009 again appellant No.1/plaintiff was absent and he failed to file proof affidavit in lieu of chief examination. The Trial Court dismissed the suit on the same day.
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before this Court any materaial to show that the First Appellate Court ignored any settled principles of law. The right of appeal is confered by a Statute. When the Statute confers a limited right of appeal restricted only to cases which involves substantial quesitons of law, it is not open to this Court to sit in appeal over the factual findings arrived at by the First Appellate Court.
Therefore, I am constrained to hold that there is no substantial questions of law involved in this Regular Second Appeal. Therefore, the Second Appeal stands dismissed in limine . No costs.
Sd/- K.BABU, JUDGE
kkj
2 issues framed by the court
Whether the lower court failed to satisfy the test for substantial question of law under Section 100 of the CPC.
Whether there is a substantial question of law involved in this Regular Second Appeal regarding dismissal for non-prosecution.
3 provisions across 2 enactments
MUKUNDAN MENON (DIED) AND ORS.
SANKUNNY MENON (DIED) AND ORS.
K. BABU
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court