IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 1026 of 2009()
1. SURESH BABU, AGED 55 YEARS,
... Petitioner
Vs
1. GEETHA SANTHOSH, W/O.SANTHOSH,
... Respondent
For Petitioner :SRI.A.X.VARGHESE
For Respondent :SRI.ANIL S.RAJ
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :19/10/2009
O R D E R
THOMAS P. JOSEPH, J.
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R.S.A.No.1026 of 2009
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Dated this the 19th day of October, 2009.
JUDGMENT
This Second Appeal arises from judgment of the learned Sub Judge,
Kochi in A.S.No.41 of 2009 dismissing the appeal as barred by limitation.
2. Appellant and respondent are uterine siblings. Property belonged
to the appellant and his mother in equal shares. Appellant filed O.S.No.605 of
2005 against respondent claiming absolute title and possession of the suit
property on the strength of an agreement for sale allegedly executed by the
mother in favour of appellant. Respondent in turn filed O.S.No.165 of 2006
claiming that on the death of the mother her half share devolved on appellant
and respondent equally and thus she has one fourth share in the suit property,
remaining 3/4th going to the appellant. Both suites were tried together.
O.S.No.605 of 2005 ended in dismissal which was not challenged and has
become final. O.S.No.165 of 2006 was decreed and preliminary decree for
partition as above stated was passed. That preliminary decree was challenged
by the appellant in A.S.No.23 of 2007 but the appeal was dismissed. There is no
further appeal on that judgment and preliminary decree and accordingly the
preliminary decree has become final. Respondent filed application for passing a
final decree and final decree was passed on the basis of Exts.C1 to C4. With a
delay of 440 days appellant preferred A.S.No.41 of 2009 accompanied by
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I.A.No.423 of 2009 to condone the delay. First appellate court was not
impressed by the reasons stated by the appellant to condone the delay.
Application to condone delay was dismissed and consequently appeal also was
dismissed. Hence this Second appeal. Substantial questions of law raised in
the memorandum of appeal are whether first appellate court was bound to
consider the grounds taken in the memorandum of appeal before disposing of
the appeal, whether the findings of the courts below are supported by evidence,
whether the finding of the first appellate court that preliminary decree passed is
correct and there is no need of interference and whether the first appellate court
has correctly followed the dictum laid down by the Supreme Court in
N.Balakrishnan v. M.Krishnamurthy [(1998) 7 SCC 123] and State
of Nagaland v. Lipok Ao and others [(2005) 3 SCC 752]?.
3. When an application to condone delay is dismissed and
consequently appeal is also dismissed, there is a decree in which the decree of
the trial court would get merged and hence the Second Appeal is maintainable.
In this Second Appeal, appellant can challenge the correctness of the order
dismissing the application to condone the delay. In this case, the reason stated
for condonation of delay is that A.S.No.23 of 2007 against preliminary decree
was pending, in the meantime final decree was passed and then A.S.No.23 of
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2007 was dismissed as infructuous. Appellant then filed I.A.No.304 of 2008 in
that appeal (for review) which also was dismissed. Pendency of those
proceedings is stated to be the reason for the delay in filing A.S.No.41 of 2009
against the final decree. I am told that dismissal of A.S.No.23 of 2007 was
challenged in this Court, judgment in A.S.No.23 of 2007 was set aside and the
matter was remitted to the first appellate court for fresh consideration and
thereafter the appeal was dismissed on merit. That judgment and decree are not
challenged in appeal and thus the preliminary decree became final. A.S.No.41
of 2009 was preferred against the final decree on 17.3.2009 with a delay of 440
days. In the affidavit in support of the application to condone delay it is stated
that delay occurred since A.S.No.23 of 2007 was pending. That according to the
first appellate court is not a sound reason and the application was dismissed. It
is appropriate to refer to the facts of the case to decide whether there is a
substance or bonafides in the application to condone the delay. Learned Munsiff
passed the final decree basing on Exts.C1 to C4. Copy of the final judgment on
I.A.No.260 of 2007 on the basis of which final decree was passed (a certified
copy of that final judgment is not produced along with the Second Appeal) which
learned counsel for respondent gave me for perusal states that appellant did
not prefer any objection to Exts.C1 to C4 though sufficient opportunity was
given. There was also no representation for the appellant in the court of
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learned Munsiff on the day the application for passing final decree was heard
by the learned Munsiff. Learned Munsiff allotted plot A in Ext.C2 to the
respondent and plot C (in Ext.C2) to the appellant. Plot B (a small plot) was
kept common to be used as a pathway for access to the respective plots.
Appellant was directed to pay Rs.24,483/- as owelty to the respondent within
one month from the date of judgment.
4. On going through the order on I.A.No.423 of 2009in A.S.No.41 of
2009 I find that there is no justifiable reason stated by the appellant to condone
delay. That, A.S.No.23 of 2007 was pending is no ground not to file appeal
against the final judgment and decree. It is not as if appellant was prevented by
any other cause from filing the appeal on time. Learned counsel for appellant
has placed reliance on the decisions in N.Balakrishnan v.
M.Krishnamurthy [(1998) 7 SCC 123] and State of Nagaland v.
Lipok Ao and others [(2005) 3 SCC 752] to contend that in the matter of
condonation of delay court has to adopt a liberal approach and that it is not the
length of delay that matters. It is to be ascertained whether delay is willfully
caused. But, liberal approach has to be on the facts pleaded. I must also keep
in mind that the law of limitation is not an equitable statute. This is a case
where parties are fighting from 2005 onwards over a small plot of land. Learned
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counsel for respondent points out from the memorandum of appeal in A.S.No.41
of 2009 that all the grounds urged in that appeal are in challenge of the
preliminary decree which has already become final and not in respect of the
allotment of shares made in the final decree or the owelty awarded. First
appellate court found that there is no justifiable reason to condone the delay and
exercised tits discretion not to condone the delay. No substantial question of
law is involved requiring this Court to interfere.
Resultantly, this Second Appeal fails. It is dismissed.
I.A.No.2286 of 2009 will stand dismissed.
THOMAS P.JOSEPH,
Judge.
cks