{"id":97531,"date":"2009-12-11T00:00:00","date_gmt":"2009-12-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mary-vs-joy-on-11-december-2009"},"modified":"2015-10-19T19:36:46","modified_gmt":"2015-10-19T14:06:46","slug":"mary-vs-joy-on-11-december-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mary-vs-joy-on-11-december-2009","title":{"rendered":"Mary vs Joy on 11 December, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Mary vs Joy on 11 December, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nRSA.No. 62 of 2005()\n\n\n1. MARY, KOLENCHERY VEETTIL,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. JOY, S\/O.KUNJUVAREETH,\n                       ...       Respondent\n\n                For Petitioner  :SRI.DINESH R.SHENOY\n\n                For Respondent  :SRI.S.V.BALAKRISHNA IYER (SR.)\n\nThe Hon'ble MR. Justice THOMAS P.JOSEPH\n\n Dated :11\/12\/2009\n\n O R D E R\n                           THOMAS P JOSEPH, J.\n                     ----------------------------------------\n                           R.S.A.No.62 of 2005G\n                      ---------------------------------------\n                Dated this 11th day of December, 2009\n\n                                  JUDGMENT\n<\/pre>\n
      The second appeal arises from judgment of learned Additional<\/p>\n
District Judge, North Paravur in A.S.No.166 of 2002 dismissing that<\/p>\n
appeal consequent to dismissal of I.A.No.493 of 2002 to condone the<\/p>\n
delay of 1523 days in preferring the appeal.\n<\/p>\n
      2.     The fight is between brother and sister, for partition. The<\/p>\n
sister filed a suit for partition of 3 items of properties claiming that she<\/p>\n
has half share in those properties along with the respondent\/brother.<\/p>\n
Suit was resisted by the respondent.               Trial court observed that<\/p>\n
appellant’s father assigned another item of land to the appellant as per<\/p>\n
Ext.B1 and hence she is not entitled to partition of the properties<\/p>\n
scheduled in the suit. Accordingly the suit was dismissed. After 1523<\/p>\n
days appellant preferred A.S.No.166 of 2002 with the application<\/p>\n
above referred for condonation of delay. That application did not find<\/p>\n
favour with learned Additional District Judge, it was dismissed and<\/p>\n
consequentially the appeal also was dismissed. Hence the second<\/p>\n
appeal on the substantial question of law whether first appellate court<\/p>\n
has not failed in applying the principles of law settled by the apex<\/p>\n
court in the matter of consideration of the application for condonation<\/p>\n
of delay.    Learned counsel for appellant would contend that on the<\/p>\n
facts and circumstances stated by appellant in the affidavit in support<\/p>\n
R.S.A.No.62 of 2005                  2<\/span><\/p>\n
of application first appellate court ought to have taken a liberal view in<\/p>\n
deciding whether sufficient cause is made out to condone the delay.<\/p>\n
Learned counsel referred me to the circumstances under which delay<\/p>\n
happened to be caused.         Learned Senior Advocate appearing for<\/p>\n
respondent while opposing the appeal contended that appellant was<\/p>\n
very much aware of Ext.B1 and the nature of transaction made<\/p>\n
thereunder. There was no possibility or occasion for her being mislead<\/p>\n
by Ext.B1 as claimed by her.        There was contumacious delay and<\/p>\n
negigence on the part of the appellant.        Learned Senior Advocate<\/p>\n
submitted that condonation of delay at this distant point of time will<\/p>\n
result in cruelty to the respondent.\n<\/p>\n
      3.    The claim is for partition of 3 items of properties referred to<\/p>\n
in the plaint schedule. It is not disputed that father of the parties had<\/p>\n
executed Ext.B1 styled as a usufructuary mortgage in favour of the<\/p>\n
appellant (which is the subject matter of O.S.No.336 of 1999 between<\/p>\n
the same parties in the court of learned Munsiff, Aluva). Appellant<\/p>\n
would say that trial court while dismissing the suit for partition<\/p>\n
observed that property covered by Ext.B1 has been given to her share<\/p>\n
by the father and hence she is not entitled to get any further share in<\/p>\n
the suit properties. Further case of appellant is that on getting a copy<\/p>\n
of that judgment, she had taken it to lawyer at Chennai where she is<\/p>\n
staying, who advised her that if the property covered by Ext.B1 has<\/p>\n
R.S.A.No.62 of 2005                3<\/span><\/p>\n
been given to her as her share and if she is satisfied by that property,<\/p>\n
it may not be necessary for her to proceed with the suit for partition.<\/p>\n
Appellant was under the impression that she got assignment of 40<\/p>\n
cents as per Ext.B1. Under that impression she accepted the advise<\/p>\n
given by the lawyer at Chennai. While so there was attempt on the<\/p>\n
part of respondent to trespass into the 40 cents covered by Ext.B1 and<\/p>\n
thereon she filed O.S.No.336 of 1999 seeking injunction against<\/p>\n
respondent trespassing into the property. When that case came for<\/p>\n
trial there was a suggestion for settlement by the learned Munsiff and<\/p>\n
from the discussion appellant learned that she was not given absolute<\/p>\n
right over 40 cents as per Ext.B1 but, it was only a usufructuary<\/p>\n
mortgage for a period of five years. Then she got legal advise from her<\/p>\n
lawyer at Ernakulam concerning the feasibility of preferring appeal<\/p>\n
against judgment and decree of learned Munsiff in O.S.No.707 of 1994.<\/p>\n
She got legal advise that as per Ext.B1, what is given to her is only a<\/p>\n
usufructuary mortgage which is liable to be redeemed on the expiry of<\/p>\n
period mentioned therein and on getting legal advise in that way she<\/p>\n
preferred A.S.NO.166 of 2002 with the application to condone the<\/p>\n
delay. Thus, there happened to be delay of 1523 days. It is stated<\/p>\n
that there was no willful latches on the part of appellant.        It is<\/p>\n
requested that the delay in the circumstance may be condoned. The<\/p>\n
application was opposed by respondent contending that statements in<\/p>\n
R.S.A.No.62 of 2005                  4<\/span><\/p>\n
the affidavit are incorrect and that there was no possibility of appellant<\/p>\n
being mislead by the recitals in Ext.B1.      Learned Senior Advocate<\/p>\n
appearing for respondent would submit that there was no possibility of<\/p>\n
appellant being in possession of the property covered by Ext.B1 in the<\/p>\n
nature of the contention she has raised in O.S.No.336 of 1999. It is<\/p>\n
also submitted by       learned Senior Advocate that nature of the<\/p>\n
proceedings in O.S.No.336 of 1999 would show that the suit is nothing<\/p>\n
but a luxury for appellant.     Learned Senior Advocate submits that<\/p>\n
O.S.No.336 of 1999 ended in dismissal for default and the counter<\/p>\n
claim was allowed. Appellant filed I.A.No.1346 of 2003 for restoration<\/p>\n
of the suit and to set aside decree on the counter claim.           That<\/p>\n
application was dismissed on 11-12-2003. Thereafter, appellant filed<\/p>\n
I.A.Nos.488 of 2005 and 489 of 2005 for restoration of I.A.No.1346 of<\/p>\n
2003 and to condone the delay in filing I.A.No.488 of 2005. Those<\/p>\n
applications were opposed by respondent. Those applications ended in<\/p>\n
dismissal for default. Then came I.A.No.663 of 2005 from the side of<\/p>\n
appellant to restore I.A.Nos.488 of 2005 and 489 of 2005.           That<\/p>\n
application was dismissed on 30-07-2005 against which appellant filed<\/p>\n
C.R.P.No.581 of 2006. This court was inclined to allow I.A.No.663 of<\/p>\n
2005 and accordingly disposed of C.R.P.No.581 of 2006 subject to<\/p>\n
terms and conditions.        Learned Senior Advocate submits that<\/p>\n
C.R.P.No.581 of 2006 was allowed and the matter was sent back to the<\/p>\n
R.S.A.No.62 of 2005                  5<\/span><\/p>\n
trial court for consideration of I.A.Nos.488 of 2005 and 489 of 2005.<\/p>\n
Learned Senior Advocate submits that those applications were allowed<\/p>\n
by learned Munsiff on terms but, the terms were not complied and<\/p>\n
hence the same were dismissed, as information has been given to the<\/p>\n
Senior Advocate by the party. Learned counsel for appellant was not<\/p>\n
able to say what exactly is the position of I.A.Nos.488 of 2005 and 489<\/p>\n
of 2005. Any way, that matter ends there.\n<\/p>\n
      4.     Now the question for consideration is whether appellant<\/p>\n
has shown sufficient cause in filing the appeal after 1523 days.        I<\/p>\n
stated the circumstances under which delay according to the appellant<\/p>\n
happened to be caused. It is now not disputed that as per Ext.B1 what<\/p>\n
was created by the father is only a usufructuary mortgage for a period<\/p>\n
of five years and to redeem that mortgage respondent has made the<\/p>\n
counter claim in O.S.No.336 of 1999.         Going by the judgment of<\/p>\n
learned Munsiff in the present suit it would appear that the item of land<\/p>\n
referred in Ext.B1 was given to the appellant as her share in the<\/p>\n
property of her father. It is that judgment which appellant says, she<\/p>\n
had taken to her lawyer at Chennai for legal opinion and she was told<\/p>\n
that if she is satisfied with that property she need not pursue the suit<\/p>\n
for partition. I have gone through the judgment of learned Munsiff and<\/p>\n
find observations which are to the effect that property covered by<\/p>\n
Ext.B1 has been given to the appellant as her share in the property of<\/p>\n
R.S.A.No.62 of 2005                  6<\/span><\/p>\n
her father. That being the fact presented to the lawyer at Chennai it is<\/p>\n
possible that appellant was given the advise that if she were satisfied<\/p>\n
with that property, she need not pursue the suit for partition. To that<\/p>\n
extent there is some justification in the case pleaded by the appellant.<\/p>\n
      5.     But, even if it is assumed that sufficient cause has been<\/p>\n
made out by the appellant, court is not bound to condone the delay.<\/p>\n
When sufficient cause is shown, court gets the discretionary power to<\/p>\n
condone the delay.      I found that there was some justification for<\/p>\n
appellant not pursuing the demand for partition. Then I am to consider<\/p>\n
whether discretion in the matter of condonation of delay has to be<\/p>\n
exercised in favour of the appellant. Though, it has no direct bearing<\/p>\n
on the issue, I am also to bear in mind the way O.S.No.336 of 1999 was<\/p>\n
conducted by the appellant. I referred to the successive dismissal for<\/p>\n
default in that case and appellant coming to this court with<\/p>\n
C.R.P.No.581 of 2006 to reopen the latest of the applications she<\/p>\n
preferred and which was dismissed, according to learned counsel for<\/p>\n
appellant on merit. In this case, the delay involved is of 1523 days.<\/p>\n
while exercising the discretion this court is also to consider the<\/p>\n
difficulty to which the party in whose favour the verdict has been made<\/p>\n
has to suffer. Learned Senior Advocate for the respondent submits<\/p>\n
that respondent comes from poor financial situations. The litigation<\/p>\n
stated in the year 1994 and in the year 2009 a request is being made<\/p>\n
R.S.A.No.62 of 2005                  7<\/span><\/p>\n
to set aside the order of learned Additional District Judge refusing to<\/p>\n
condone delay.       I must bear in mind the agony and difficulties<\/p>\n
undergone by the respondent. Minor latches and delay on the part of<\/p>\n
the appellant so far as it does not amount to contumacious latches and<\/p>\n
negligence has to be condoned if necessary by awarding costs. It is so<\/p>\n
held by Justice V.R.Krishna Iyer in Sreedhara Kurup Vs. Mickel<\/p>\n
(1968 KLT 599). Learned Judge has observed about the policy that<\/p>\n
the court must bear in mind in dealing with the applications in the<\/p>\n
following lines.\n<\/p>\n
                “It is largely a matter of wise discretion to be<\/p>\n
        exercised by the Court bearing in mind the wholesome<\/p>\n
        principle that the right of a party to be heard should be<\/p>\n
        negatived only if there is gross negligence or gross<\/p>\n
        carelessness and that is some steps have been taken<\/p>\n
        and application for restoration has been made with<\/p>\n
        some diligence and some evidence adduced making out<\/p>\n
        a sufficient cause for absence, restoration should be<\/p>\n
        ordered, minor misconduct or latches being corrected by<\/p>\n
        the common curative of costs. This brooding spirit of<\/p>\n
        natural justice must be in the background while<\/p>\n
        ascertaining whether there is sufficient cause. A strict<\/p>\n
        and narrow construction defeats the ends of justice<\/p>\n
        which can be reached only after a fair fight between the<\/p>\n
        disputants.”\n<\/p><\/blockquote>\n
As above stated, the brooding spirit of natural justice should be in the<\/p>\n
background while ascertaining whether there is sufficient cause and<\/p>\n
R.S.A.No.62 of 2005                 8<\/span><\/p>\n
having regard to the principles referred to in the decision referred<\/p>\n
supra I am inclined to think that appellant has to given an opportunity<\/p>\n
to contest the appeal but on heavy terms of cost considering the<\/p>\n
inconvenience and difficulties being caused to the respondent.<\/p>\n
Considering the facts and circumstances of the case I fix the cost<\/p>\n
payable to the respondent at Rs.7500\/-. While considering the request<\/p>\n
for condonation of delay learned District Judge has not referred to the<\/p>\n
relevant aspects laid down in the decision referred above.         The<\/p>\n
substantial question of law framed above is answered accordingly.<\/p>\n
      Resultantly second appeal is allowed in the following lines:<\/p>\n
             (i)   Judgment and decree under challenge will<\/p>\n
      stand set aside and I.A.No.493 of 2002 will stand allowed<\/p>\n
      on condition that appellant paid to the respondent through<\/p>\n
      the Senior Advocate appearing for him in this court\/deposit<\/p>\n
      for payment to the respondent in this court the sum of<\/p>\n
      Rs.7500\/- (Rupees Seven Thousand Five Hundred Only) by<\/p>\n
      way of cost within one month from this day.\n<\/p>\n
             (ii)  In case of non compliance of condition referred<\/p>\n
      to above this appeal will stand dismissed in confirmation of<\/p>\n
      the judgment and decree of the learned Additional District<\/p>\n
      Judge.\n<\/p>\n
             (iii) In case condition No.1 is complied the matter<\/p>\n
R.S.A.No.62 of 2005                 9<\/span><\/p>\n
      will stand remitted to the court of learned Additional<\/p>\n
      District Judge, North Paravur who shall hear the appeal<\/p>\n
      under Order 41 Rule 11 of the Code of Civil Procedure and<\/p>\n
      pass appropriate orders.\n<\/p>\n
             (iv)  In case condition No.1 is complied as aforesaid<\/p>\n
      appellant shall appear in the court of learned Additional<\/p>\n
      District Judge on 11-02-2010. I make it clear that it will be<\/p>\n
      open to the respondent also to appear before learned<\/p>\n
      District Judge on that day so that, in case learned District<\/p>\n
      Judge is inclined to admit the appeal, the delay in sending<\/p>\n
      notice to the respondent can be avoided.\n<\/p>\n
Post the appeal on 12-01-2010.\n<\/p>\n<\/p>\n
                                                    THOMAS P JOSEPH,
\n                                                           JUDGE<\/p>\n
Sbna\/<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Mary vs Joy on 11 December, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-97531","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nMary vs Joy on 11 December, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mary-vs-joy-on-11-december-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mary vs Joy on 11 December, 2009 - 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