IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 11TH DECEMBER 2009 / 20TH AGRAHAYANA 1931 RSA.No. 62 of 2005() -------------------- AS.166/2002 of ADDL. DISTRICT COURT, PARAVUR OS.707/1994 of PRINCIPAL SUB COURT,PARAVUR .................... APPELLANT/APPELLANT/PLAINTIFF: ----------------------------- MARY, KOLENCHERY VEETTIL, CHOWARA KARA, CHOWARA VILLAGE, ALUVA TALUK, NOW RESIDING AT KUPPAYAR STREET, MADRAS. BY ADV. SRI.DINESH R.SHENOY RESPONDENT/RESPONDENT/DEFENDANT: ------------------------------------ JOY, S/O.KUNJUVAREETH, KOLENCHERY VEETTIL, CHOWARA KARA, CHOWARA VILLAGE, ALUVA TALUK. ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.62 of 2005G --------------------------------------- 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/ An amount of Rs.7500/- has been paid by the counsel for the appellant to the Senior Advocate for the respondent within the stipulated time as ordered in the judgment dated 11-12-2009 in R.S.A.No.62 of 2005 vide memo CF 55/2010 dated 05/01/2010. Sd/- Registrar (Judicial)