Dismissed¶¶49

Santhosh J. Thomas v. George Joseph

Kerala HC18 Mar 2025RSA/40/2022

Case brief

AI extract

What is this about?

Kerala High Court RSA dismissed: condonation of 455-day delay in appealing Final Decree in partition suit rejected; COVID-period exclusion and decree-readiness arguments rejected; medical records did not cover delay period; final decree engrossed on stamp paper 28.11.2019; clear laches; no interference with Sub Court, Pala judgment dated 23.09.2021 (A.S. 61/2020 arising from O.S. 82/2012, Munsiff Court, Pala).

What did the court decide?

The appellant's explanation based on his medical records does not cover the period of delay from 15.06.2019 to 12.10.2020, corroborating the First Appellate Court's finding that the records (treatment in 2010 and on 13.09.2020) do not relate to the delay period. ¶¶45

Santhosh J. Thomas Vs George Joseph — Kerala HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the delay of 455 days in filing the appeal before the First Appellate Court was properly explained and should have been condoned (appellant contending inter alia that excluding the Supreme Court-ordered COVID period the delay is only 244 days, or 108 days if computed from the date the decree was ready), taking grounds against the order dismissing the condonation application

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Court's answer

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Ratio / Principle

The appellant could not substantiate any sufficient cause preventing him from filing the appeal within time; since the Final Decree had been engrossed on stamp paper much before the filing of the appeal and the proceedings were concluded, there are clear laches on his part in not filing the appeal within the limitation period.

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Key takeaways

There is no ground or reason to interfere with the order passed by the First Appellate Court dismissing the appeal for want of condonation of delay; accordingly, the Regular Second Appeal is dismissed.ratio¶¶49

Detailed headnote1 paragraphs

Regular Second Appeal (RSA No.40 of 2022, High Court of Kerala) by the first defendant in a partition suit (O.S. No.82 of 2012, Munsiff Court, Pala) against the judgment and decree dated 23.09.2021 of the Sub Court, Pala in A.S. No.61 of 2020, whereby his appeal against the Final Decree (passed 15.06.2019) was dismissed following rejection of his application to condone a delay of 455 days. The appellant contended that excluding the COVID period covered by Supreme Court orders the real delay was only 244 days, or 108 days if reckoned from the date the decree was ready, and urged interference on merits over the allotment of the residential building in plaint A schedule to the plaintiff. The Court found the medical records relied upon showed treatment only in 2010 and on 13.09.2020 and did not cover the delay period (15.06.2019 to 12.10.2020); the Final Decree had been engrossed on nonjudicial stamp paper on 28.11.2019, yet the appeal was filed only on 12.10.2020. Holding that the appellant could not substantiate sufficient cause and that there were clear laches, the Court declined to interfere and dismissed the Regular Second Appeal.

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RSA NO. 40 OF 2022

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2025:KER:24649

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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 M.A.ABDUL HAKHIM

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TUESDAY, THE 18TH DAY OF MARCH 2025 / 27TH PHALGUNA, 1946

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RSA NO. 40 OF 2022

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AGAINST THE JUDGMENT AND DECREE DATED 23.09.2021 IN AS NO.61

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OF 2020 OF SUB COURT, PALA

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ARISING OUT OF THE JUDGMENT AND DECREE DATED 15.06.2019 IN OS

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NO.82 OF 2012 OF MUNSIFF COURT, PALA

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APPELLANT/APPELLANT/1ST DEFENDANT IN O.S.NO.82/2012 – 2ND RESPONDENT IN

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FDA:

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SANTHOSH J. THOMAS

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AGED 61 YEARS

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SON OF JOSEPH, PUTHIYIDATHU HOUSE, ANTHINADU KARA, ANTHINADU
P.O., LALAM VILLAGE, MEENACHIL TALUK - 686 651.

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BY ADV P.C.HARIDAS

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RESPONDENTS/RESPONDENTS/PLAINTIFF – DEFENDANTS 2– AND 3 IN O.S.NO.82/2012

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– 1ST RESPONDENT AND PETITIONERS IN FDA:

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1 GEORGE JOSEPH
(ROYICHAN PUTHIYIDOM), AGED 61 YEARS, PUTHIYIDOM ESTATE,
SIDDAPUR ROAD, CHANDRAGUTTI P.O., SIVAMOGA DISTRICT,
KARNATAKA, PIN -577 429.

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2 LISSAMMA
AGED 50 YEARS
W/O.THOMASKUTTY, PANAKKAL HOUSE, KIZHATHADIYOOR KARA,
KAVIKUNNU P.O., LALAM VILLAGE, MEENACHIL TALUK,
KOTTAYAM DISTRICT - 686 575.

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RSA NO. 40 OF 2022

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2025:KER:24649

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3 TESSYMOL J.PUTHIYIDAM
AGED 52 YEARS
W/O.GEORGE, PULIPPARAMBIL HOUSE, CHAMPAKKARA KARA, VYTTILA
VILLAGE, VYTTILA P.O., KANAYANNOOR TALUK,
ERNAKULAM DISTRICT - 682 038.

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BY ADVS.
R1 V.RAJENDRAN (PERUMBAVOOR)
 GOPAKUMAR P.
 N.RAJESH
R2 & R3 BABY THOMAS
 JOBY JOSEPH
 GEORGE T.J

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
18.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RSA NO. 40 OF 2022

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2025:KER:24649

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JUDGMENT

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The first defendant in a suit for partition is the appellant. The Appeal is filed challenging the judgment of the First Appellate Court dismissing the Appeal consequent to the dismissal of the application to condone the delay of 455 days in filing the Appeal, taking grounds against the order dismissing the application to condone delay.

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The Appeal before the First Appellate Court was filed against the Final Decree passed in the suit.

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I heard the learned counsel for the appellant, Sri.P.C.Haridas and the learned counsel for the first respondent, Sri.V. Rajendran and the learned counsel for the respondents 2 and 3, Sri.Baby Thomas.

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The learned counsel for the appellant contended that even though the period of delay which was shown in the application to condone delay is 455 days, if the period which was allowed to be excluded on account of COVID pandemic as per the orders of the Hon'ble Supreme Court is excluded, the actual delay is only 244 days. The counsel contended that it is well settled that the delay can be calculated only when the decree is ready for issuance, and the delay on the part of the Court for preparing the decree could not be taken

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RSA NO. 40 OF 2022

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2025:KER:24649 into account even if the appellant did not file an application for a certified copy of the decree. If the delay is calculated from the date when the decree was ready, the delay will be only 108 days. The learned counsel also invited my attention to the merits of the matter by contending that the residential building which is situated in plaint A schedule property is allotted to the plaintiff without assigning special reasons. It is the first defendant and his family who have been residing in the residential building and the plaintiff has been residing in Shimoga.

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On the other hand, the learned counsel for the respondents contended that the delay was not properly explained by the appellant in the application to condone delay. The First Appellate Court specifically found that all the documents produced by the appellant with respect to his ailments do not relate to the period of delay.

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I have considered the rival contentions.

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The Final Decree was passed on 15.06.2019. The Appeal was filed only on 12.10.2020. The application for Final Decree was submitted on 11.09.2020 and the same was delivered on 30.09.2020. The contention of the appellant is that he had medical issues that

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RSA NO. 40 OF 2022

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2025:KER:24649 prevented him from prosecuting the Appeal by filing the same within time. He has produced certain medical records before the First Appellate Court. The First Appellate Court found that the said medical records do not relate to the period during which the delay occurred. A specific finding was entered into by the First Appellate Court that the records would show that he was treated for cardiac problems in the year 2010 and thereafter he was treated only on 13.09.2020. The delay which is to be explained by the appellant is for the period from 15.06.2019 to 12.10.2020. The aforesaid explanation does not cover the period from 15.06.2019 to 12.10.2020. It is revealed that he had been participating in the Final Decree proceedings. The Final Decree was engrossed on nonjudicial stamp paper on 28.11.2019. It is clear from the said fact that only about a year after engrossing the final decree in stamp paper, the appellant thought of filing an Appeal before the First Appellate Court. The appellant could not substantiate any sufficient cause which prevented him from filing the appeal within time. Since the Final Decree was engrossed on the stamp paper much before the filing of the Appeal and the proceedings are concluded, I find that there are clear laches on the part of the appellant in not filing the

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RSA NO. 40 OF 2022

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2025:KER:24649

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appeal within the limitation period. I do not find any ground or reason to interfere with the order passed by the First Appellate Court. Accordingly, the Regular Second Appeal is dismissed.

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Sd/-

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M.A.ABDUL HAKHIM

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JUDGE

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Shg/XX

Santhosh J. Thomas v. George Joseph

Case brief

What is this about?

What did the court decide?

Santhosh J. Thomas v. George Joseph

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Procedural history

Parties & counsel

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Case details

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