IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 16TH MARCH 2010 / 25TH PHALGUNA 1931 RSA.No. 272 of 2010() --------------------- AS.120/2009 of DISTRICT COURT,KOLLAM I.A.NO.1187/2003 IN OS.846/1987 of ADDL.MUNSIFF COURT, KOLLAM .................... APPELLANT/APPELLANT/2ND DEFENDANT ------------------------------------------- B.SHYLAJA, AGED 47 YEARS, W/O.LATE AZHAKESAN, NOW RESIDING AT JAINLY VILLA, DEVI NAGAR 76, KAIKULANGARA DIVISION, KOLLAM WEST VILLAGE, KOLLAM TALUK, FROM KOTTATHAZHAM VEEDU, MUNDAKKAL WARD, KOLLAM. BY ADV. SRI.RAJA VIJAYARAGHAVAN SRI.M.T.SURESHKUMAR RESPONDENT(S)/RESPONDENTS/PLAINTIFF & DEFENDANTS 1, 3 AND 4:: --------------- 1. B.SHEELA, D/O.BAHULEYAN, SHYLAJA BHAVAN, KANNIMEL CHERRY, KILIKOLLOOR VILLAGE, NOW RESIDING AT NEYARVILA VEEDU, KANNIMMEL CHERRY, KILIKOLLOOR VILLAGE, KOLLAM. 2. VILASINI, D/O.NANU, SHYLAJA BHAVAN, KANNIMEL CHERRY, KILIKOLLOOR VILLAGE. 3. SHIBU, S/O.BAHULEYAN, SHYLAJA BHAVAN, KANNIMEL CHERRY, KILIKOLLOOR VILLAGE. 4. SHABU, S/O.BAHULEYAN, SHYLAJA BHAVAN. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.272 of 2010 -------------------------------------- Dated this the 16th day of March, 2010. JUDGMENT Second Appeal arises from judgment and decree of learned District Judge, Kollam in A.S.No.120 of 2009 dismissing the appeal as barred by limitation consequent to dismissal of I.A.No.750 of 2009. Appeal arose from a final decree passed by the learned Additional Munsiff, Kollam on I.A.No.1187 of 2003 in O.S.No.846 of 1987. Appeal was presented with 97 days' delay stating that the clerk of the counsel for appellant/defendant No.2 in the trial court had promised to inform her whenever copy of judgment and decree are received but no such information was given and hence the delay. Learned District Judge was not impressed by the reason stated by the appellant for condonation of delay and dismissed I.A.No.750 of 2009. Consequently the appeal was dismissed as time barred and hence this Second Appeal 2. While considering whether delay has to be condoned it is open to the court to have a glance on the case urged by the appellant though a deeper consideration is not warranted. That is because the court must be satisfied that the appellant has to be given an opportunity to state his case. If he has no case, then condonation of delay will be an empty formality. Here, the suit was filed in the year 1987 and a preliminary decree for partition was passed allowing the plaintiff to get one tenth share in plaint A schedule and one fifth share in plaint B RSA No.272/2010 2 schedule. It was also directed in the preliminary decree that so far as possible building and other structures in the property will be alloted to the share of defendant Nos.1, 3 and 4 and that if no prejudice is caused to the parties and if it is convenient and beneficial for them and if the parties so desired one tenth share of plaintiff in plaint A schedule may be alloted to her from plaint B schedule along with her one fifth share in that item. Pursuant to the application preferred by the plaintiff, an advocate commissioner was appointed to make the division of the properties by metes and bounds. Advocate commissioner submitted Ext.C1 series, report, mahazar and plan. None of the parties raised any objection to Ext.C1 series. Learned Additional Munsiff accepted Ext.C1 series and passed final decree. That was challenged before the learned District Judge at the instance of defendant No.2. 3. It is seen from the final judgment of the learned Additional Munsiff that except that plaintiff was not alloted her one tenth share in plaint A schedule from plaint B schedule along with her one fifth share in that item all other directions in the preliminary decree have been complied with. Allotting entire share to the plaintiff from plaint B schedule was made subject to convenience and if the parties so desired. Plots S and P in Ext.C1(b) along with building and structures thereon are alloted to the defendants while plots Q and R are allotted to the plaintiff which is in keeping with directions in the preliminary decree. Now RSA No.272/2010 3 the grievance of appellant/defendant No.2 is only that an electric line passes along with western side of the suit property and that if appellant has to provide access to the plot allotted to her, she has to spare a portion of the property alloted to her. I am not inclined to think such an argument could be advanced at this stage since no objection was preferred to Ext.C1 series and no attempt was made to show that division made by the advocate commissioner is in any way inequitable. Going by Ext.C1(b) (copy of which is given to me by learned counsel) it is seen that both parties have sufficient road frontage and access. Existence of the electric line by itself may not preclude appellant/defendant No.2 from providing access from the road on the western side. At any rate, similar inconvenience has to be experienced by the plaintiff also. Having gone through the judgment under challenge I do not find any substance in the grievance of appellant/defendant No.2 that she should be given an opportunity to challenge the final decree in appeal after condoning the delay. Learned District Judge has stated that appellant has not substantiated her case as to the cause of delay and that “sufficient cause” is not made out. This is a suit for partition which started in the year 1987. Plaintiff has so far been kept out of possession of the share to which she is legitimately entitled. There is no reason why on a flimsy ground the matter has again to be dragged. There is nothing illegal in the order of the District Judge to involve any substantial question of law. RSA No.272/2010 4 The Second Appeal is therefore dismissed in limine. I.A.No.677 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks