IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 62 of 2005()
1. MARY, KOLENCHERY VEETTIL,
... Petitioner
Vs
1. JOY, S/O.KUNJUVAREETH,
... Respondent
For Petitioner :SRI.DINESH R.SHENOY
For Respondent :SRI.S.V.BALAKRISHNA IYER (SR.)
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :11/12/2009
O R D E R
THOMAS P JOSEPH, J.
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R.S.A.No.62 of 2005G
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Dated this 11th day of December, 2009
JUDGMENT
The second appeal arises from judgment of learned Additional
District Judge, North Paravur in A.S.No.166 of 2002 dismissing that
appeal consequent to dismissal of I.A.No.493 of 2002 to condone the
delay of 1523 days in preferring the appeal.
2. The fight is between brother and sister, for partition. The
sister filed a suit for partition of 3 items of properties claiming that she
has half share in those properties along with the respondent/brother.
Suit was resisted by the respondent. Trial court observed that
appellant’s father assigned another item of land to the appellant as per
Ext.B1 and hence she is not entitled to partition of the properties
scheduled in the suit. Accordingly the suit was dismissed. After 1523
days appellant preferred A.S.No.166 of 2002 with the application
above referred for condonation of delay. That application did not find
favour with learned Additional District Judge, it was dismissed and
consequentially the appeal also was dismissed. Hence the second
appeal on the substantial question of law whether first appellate court
has not failed in applying the principles of law settled by the apex
court in the matter of consideration of the application for condonation
of delay. Learned counsel for appellant would contend that on the
facts and circumstances stated by appellant in the affidavit in support
R.S.A.No.62 of 2005 2
of application first appellate court ought to have taken a liberal view in
deciding whether sufficient cause is made out to condone the delay.
Learned counsel referred me to the circumstances under which delay
happened to be caused. Learned Senior Advocate appearing for
respondent while opposing the appeal contended that appellant was
very much aware of Ext.B1 and the nature of transaction made
thereunder. There was no possibility or occasion for her being mislead
by Ext.B1 as claimed by her. There was contumacious delay and
negigence on the part of the appellant. Learned Senior Advocate
submitted that condonation of delay at this distant point of time will
result in cruelty to the respondent.
3. The claim is for partition of 3 items of properties referred to
in the plaint schedule. It is not disputed that father of the parties had
executed Ext.B1 styled as a usufructuary mortgage in favour of the
appellant (which is the subject matter of O.S.No.336 of 1999 between
the same parties in the court of learned Munsiff, Aluva). Appellant
would say that trial court while dismissing the suit for partition
observed that property covered by Ext.B1 has been given to her share
by the father and hence she is not entitled to get any further share in
the suit properties. Further case of appellant is that on getting a copy
of that judgment, she had taken it to lawyer at Chennai where she is
staying, who advised her that if the property covered by Ext.B1 has
R.S.A.No.62 of 2005 3
been given to her as her share and if she is satisfied by that property,
it may not be necessary for her to proceed with the suit for partition.
Appellant was under the impression that she got assignment of 40
cents as per Ext.B1. Under that impression she accepted the advise
given by the lawyer at Chennai. While so there was attempt on the
part of respondent to trespass into the 40 cents covered by Ext.B1 and
thereon she filed O.S.No.336 of 1999 seeking injunction against
respondent trespassing into the property. When that case came for
trial there was a suggestion for settlement by the learned Munsiff and
from the discussion appellant learned that she was not given absolute
right over 40 cents as per Ext.B1 but, it was only a usufructuary
mortgage for a period of five years. Then she got legal advise from her
lawyer at Ernakulam concerning the feasibility of preferring appeal
against judgment and decree of learned Munsiff in O.S.No.707 of 1994.
She got legal advise that as per Ext.B1, what is given to her is only a
usufructuary mortgage which is liable to be redeemed on the expiry of
period mentioned therein and on getting legal advise in that way she
preferred A.S.NO.166 of 2002 with the application to condone the
delay. Thus, there happened to be delay of 1523 days. It is stated
that there was no willful latches on the part of appellant. It is
requested that the delay in the circumstance may be condoned. The
application was opposed by respondent contending that statements in
R.S.A.No.62 of 2005 4
the affidavit are incorrect and that there was no possibility of appellant
being mislead by the recitals in Ext.B1. Learned Senior Advocate
appearing for respondent would submit that there was no possibility of
appellant being in possession of the property covered by Ext.B1 in the
nature of the contention she has raised in O.S.No.336 of 1999. It is
also submitted by learned Senior Advocate that nature of the
proceedings in O.S.No.336 of 1999 would show that the suit is nothing
but a luxury for appellant. Learned Senior Advocate submits that
O.S.No.336 of 1999 ended in dismissal for default and the counter
claim was allowed. Appellant filed I.A.No.1346 of 2003 for restoration
of the suit and to set aside decree on the counter claim. That
application was dismissed on 11-12-2003. Thereafter, appellant filed
I.A.Nos.488 of 2005 and 489 of 2005 for restoration of I.A.No.1346 of
2003 and to condone the delay in filing I.A.No.488 of 2005. Those
applications were opposed by respondent. Those applications ended in
dismissal for default. Then came I.A.No.663 of 2005 from the side of
appellant to restore I.A.Nos.488 of 2005 and 489 of 2005. That
application was dismissed on 30-07-2005 against which appellant filed
C.R.P.No.581 of 2006. This court was inclined to allow I.A.No.663 of
2005 and accordingly disposed of C.R.P.No.581 of 2006 subject to
terms and conditions. Learned Senior Advocate submits that
C.R.P.No.581 of 2006 was allowed and the matter was sent back to the
R.S.A.No.62 of 2005 5
trial court for consideration of I.A.Nos.488 of 2005 and 489 of 2005.
Learned Senior Advocate submits that those applications were allowed
by learned Munsiff on terms but, the terms were not complied and
hence the same were dismissed, as information has been given to the
Senior Advocate by the party. Learned counsel for appellant was not
able to say what exactly is the position of I.A.Nos.488 of 2005 and 489
of 2005. Any way, that matter ends there.
4. Now the question for consideration is whether appellant
has shown sufficient cause in filing the appeal after 1523 days. I
stated the circumstances under which delay according to the appellant
happened to be caused. It is now not disputed that as per Ext.B1 what
was created by the father is only a usufructuary mortgage for a period
of five years and to redeem that mortgage respondent has made the
counter claim in O.S.No.336 of 1999. Going by the judgment of
learned Munsiff in the present suit it would appear that the item of land
referred in Ext.B1 was given to the appellant as her share in the
property of her father. It is that judgment which appellant says, she
had taken to her lawyer at Chennai for legal opinion and she was told
that if she is satisfied with that property she need not pursue the suit
for partition. I have gone through the judgment of learned Munsiff and
find observations which are to the effect that property covered by
Ext.B1 has been given to the appellant as her share in the property of
R.S.A.No.62 of 2005 6
her father. That being the fact presented to the lawyer at Chennai it is
possible that appellant was given the advise that if she were satisfied
with that property, she need not pursue the suit for partition. To that
extent there is some justification in the case pleaded by the appellant.
5. But, even if it is assumed that sufficient cause has been
made out by the appellant, court is not bound to condone the delay.
When sufficient cause is shown, court gets the discretionary power to
condone the delay. I found that there was some justification for
appellant not pursuing the demand for partition. Then I am to consider
whether discretion in the matter of condonation of delay has to be
exercised in favour of the appellant. Though, it has no direct bearing
on the issue, I am also to bear in mind the way O.S.No.336 of 1999 was
conducted by the appellant. I referred to the successive dismissal for
default in that case and appellant coming to this court with
C.R.P.No.581 of 2006 to reopen the latest of the applications she
preferred and which was dismissed, according to learned counsel for
appellant on merit. In this case, the delay involved is of 1523 days.
while exercising the discretion this court is also to consider the
difficulty to which the party in whose favour the verdict has been made
has to suffer. Learned Senior Advocate for the respondent submits
that respondent comes from poor financial situations. The litigation
stated in the year 1994 and in the year 2009 a request is being made
R.S.A.No.62 of 2005 7
to set aside the order of learned Additional District Judge refusing to
condone delay. I must bear in mind the agony and difficulties
undergone by the respondent. Minor latches and delay on the part of
the appellant so far as it does not amount to contumacious latches and
negligence has to be condoned if necessary by awarding costs. It is so
held by Justice V.R.Krishna Iyer in Sreedhara Kurup Vs. Mickel
(1968 KLT 599). Learned Judge has observed about the policy that
the court must bear in mind in dealing with the applications in the
following lines.
“It is largely a matter of wise discretion to be
exercised by the Court bearing in mind the wholesome
principle that the right of a party to be heard should be
negatived only if there is gross negligence or gross
carelessness and that is some steps have been taken
and application for restoration has been made with
some diligence and some evidence adduced making out
a sufficient cause for absence, restoration should be
ordered, minor misconduct or latches being corrected by
the common curative of costs. This brooding spirit of
natural justice must be in the background while
ascertaining whether there is sufficient cause. A strict
and narrow construction defeats the ends of justice
which can be reached only after a fair fight between the
disputants.”
As above stated, the brooding spirit of natural justice should be in the
background while ascertaining whether there is sufficient cause and
R.S.A.No.62 of 2005 8
having regard to the principles referred to in the decision referred
supra I am inclined to think that appellant has to given an opportunity
to contest the appeal but on heavy terms of cost considering the
inconvenience and difficulties being caused to the respondent.
Considering the facts and circumstances of the case I fix the cost
payable to the respondent at Rs.7500/-. While considering the request
for condonation of delay learned District Judge has not referred to the
relevant aspects laid down in the decision referred above. The
substantial question of law framed above is answered accordingly.
Resultantly second appeal is allowed in the following lines:
(i) Judgment and decree under challenge will
stand set aside and I.A.No.493 of 2002 will stand allowed
on condition that appellant paid to the respondent through
the Senior Advocate appearing for him in this court/deposit
for payment to the respondent in this court the sum of
Rs.7500/- (Rupees Seven Thousand Five Hundred Only) by
way of cost within one month from this day.
(ii) In case of non compliance of condition referred
to above this appeal will stand dismissed in confirmation of
the judgment and decree of the learned Additional District
Judge.
(iii) In case condition No.1 is complied the matter
R.S.A.No.62 of 2005 9
will stand remitted to the court of learned Additional
District Judge, North Paravur who shall hear the appeal
under Order 41 Rule 11 of the Code of Civil Procedure and
pass appropriate orders.
(iv) In case condition No.1 is complied as aforesaid
appellant shall appear in the court of learned Additional
District Judge on 11-02-2010. I make it clear that it will be
open to the respondent also to appear before learned
District Judge on that day so that, in case learned District
Judge is inclined to admit the appeal, the delay in sending
notice to the respondent can be avoided.
Post the appeal on 12-01-2010.
THOMAS P JOSEPH,
JUDGE
Sbna/