IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 15TH JUNE 2011 / 25TH JYAISHTA 1933 SA.No. 528 of 1999(D) ------------------------------- AS.142/1996 OF I ADDITIONAL SUB COURT, ERNAKULAM OS.43/1976 OF PRINCIPAL MUNSIFF COURT, ERNAKULAM .................... APPELLANTS/APPELLANTS/PLAINTIFFS 1 AND 3: ------------------------------------------------------------------------- *1. KALLIYANI AMMA, D/O.PARUAMMA, HINDU, NAIR, AGED 82, PADASSERIL VEEDU, EROOR DESOM, NADAMA VILLAGE, NOW RESIDING IN DEVI NIVAS, HMT COLONY P.O., KALAMASSERY, PERINGAZHAKARA, TRIKKAKARA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT (REPRESENTED BY THE 2ND APPELLANT AS HER NEXT FRIEND). *(DIED) 2. SHANTAKUMARI AMMA, D/O.KALLYANI AMMA, AGED 54, HINDU, NAIR NOW RESIDING AT QUARTERS NO.517/1, FACT, COCHIN DIVISION, AMBALAMEDU P.O., KUNNATHU NADU TALUK, PUTHENCRUZ VILLAGE, FROM PADASSERIL VEEDU, -DO- DESOM DO. DISTRICT. BY ADV. SRI.T.K.KURIKESU RESPONDENTS (LEGAL HEIRS OF)/DEFENDANTS/PLAINTIFF 2 & 4: ------------------------------------------------------------------------------------------------ 1. P.C. MATHAI, S/O.SOURIAR, CHRISTIAN, AGED 79 YEARS, RESIDING AT PATTATHIL HOUSE, KOPRAMBIL, KADAVANTHRA DESOM, ELAMKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. 2. P.C. JOSEPH, S/O.SOURIAR, AGED 63, CHRISTIAN, RETD. RAILWAY SERVANT, RESIDING AT PATTATHIL HOUSE, KADAVANTHRA DESOM -DO- -DO- SA.No. 528 of 1999(D) 3. P.C. DEVASY, S/O.SOURIAR, AGED 59, CHRISTIAN, RESIDING AT PATTATHIL VEEDU, -DO- -DO-. 4. P.C. JOHN, S/O.SOURIAR, AGED 55, CHRISTIAN, RESIDING AT PATTATHIL HOUSE, -DO- -DO- -DO-. 5. BHARGAVI AMMA, D/O.KALLYANI AMMA, AGED 50, HINDU, NAIR, NOW RESIDING DEVI VILAS, HMT COLONY, KALAMASSERY, PERINGHAZHAKARA, THRIKKAKARA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT FROM PADASSERIL VEEDU, EROOR DESOM, NADAMA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. 6. SARADA DEVI AMMA, D/O.KALLYANI AMMA, AGED 51, HINDU, NAIR, NOW RESIDING AT SRI VILAS, NO.151, 4TH BLOCK, PEENAYYA, BANGLORE-58 FROM PADASSERIL VEEDU -DO- -DO- -DO- TALUK -DO- DISTRICT. * 2ND APPELLANT AND RESPONDENTS 5 & 6 ARE RECORDED AS LRS OF DECEASED 1ST APPELLANT AS PER ORDER DATED 26/05/2010 IN C.M.P.929/2001 IN S.A. R1 TO R4 BY ADV. SRI.N.V.RAMACHANDRAN. R5 BY ADV. SRI.M.K.RAGHAVAN. SRI.SAJAN VARGHEESE K. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15/06/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs P.BHAVADASAN, J. ---------------------------- S.A.No. 528 of 1999 --------------------------------- Dated this the 15th day of June, 2011 JUDGMENT Plaintiffs 1 and 3 in O.S.No.43 of 1976 before the Munsiff's Court, Ernakulam are the appellants. During the pendency of the appeal, the first appellant died and his legal heirs have been brought on the party array. 2. The suit was one for redemption of mortgage. The property has been mortgaged to the defendant for a sum of Rs.500/-. 42 'paras' of paddy were fixed as the rent for the property of which 25 paras of paddy were agreed to be adjusted towards interest on the mortgage amount. The balance amount of paddy and the money were to be paid to the plaintiffs by the defendant mortgagee. The defendant has not paid the said amount to the plaintiffs from 1968 onwards. Therefore, the plaintiffs are entitled to redeem the mortgage. On the basis of these allegations, they filed the suit. 3. Defendant resisted the suit by pointing out that he is a tenant entitled to the benefit of the provisions of the Kerala Land Reforms Act. He has effected valuable improvements in the S.A.No. 528 of 1999 2 property. He has reclaimed the plaint schedule property and constructed 'chiras' and planted coconut trees. Therefore, the plaintiffs are not entitled to recover possession. Hence, he prayed for a dismissal of the suit. 4. Based on the above pleadings, necessary issues were raised by the trial court. Issue No.5 related to the claim of tenancy put forward by the defendant as required under Section 125(3) of the Kerala Land Reforms Act. The said issue was relegated to the Land Tribunal for its decision. The Land Tribunal after considering the matter found in favour of the defendant and held that he was entitled to fixity of tenure. That finding was accepted by the Munsiff's court and it was held that the defendant is entitled to tenancy right under the Kerala Land Reforms Act. 5. The trial court accepting the finding of the Land Tribunal, dismissed the suit 06.08.1981. Long thereafter in 1996, the first and the third plaintiffs came forward with the appeal as A.S. No.142/1996, the delay condonation petition was also filed as I.A. 6328/1996 to condone the delay in filing the appeal. S.A.No. 528 of 1999 3 6. The lower appellate court after considering the delay condonation petition found that there are absolutely no merits in the case and as no sufficient cause was shown to condone the delay dismissed the petition. Consequently, the appeal was also dismissed. This second appeal is directed against the said judgment and decree. 7. Notice is seen issued on the following substantial questions of law: i. Whether the trial court is right in referring O.S.No.43/1976, since the defendant has not satisfied the two conditions as stated above. ii. Whether the lower appellate court was in serious error in dismissing the appeal A.S.No.142/1996 without writing a spoken judgment. iii. Whether the lower appellate court was right in disposing off a delay condonation petition without taking into consideration the merits of the case and also the mental condition of the first appellant as evident by the deposition of PW1. 8. The learned counsel appearing for the appellants very vehementally contended that going by section 91 of the Transfer of Property Act any person who is interested in the mortgage, can institute a suit for redemption of the mortgage. It was also S.A.No. 528 of 1999 4 contended that the defendant could have obtained the benefit only under Section 5 of the Kerala Land Reforms Act and that the defendant has not satisfied the said requirement. These vital aspects have been omitted to be noticed by the courts below and therefore, the judgment and decree of the courts below are unsustainable. 9. The learned counsel appearing for the respondent on the other hand pointed out that there is absolutely no bonafide in the second appeal at all. It was pointed out that the suit was dismissed accepting the finding of the Land Tribunal on 6.08.1981. The claim of the first plaintiff was that thereafter, she became a mental patient and she was unable to file the appeal in time. Third plaintiff did not get any information from the Advocate who was conducting the suit. Five months ago she knew about the dismissal of the suit. When she contacted the counsel, he informed her that the case file was missing and he could not file the appeal. It was pointed out that the other appeals had already been filed by other plaintiff which have been disposed. In one of the appeals so disposed of, the second S.A.No. 528 of 1999 5 appellant herein is a party. The appeal in which the second appellant was a party and disposed of was filed by the same counsel who has preferred this appeal. This is nothing but gross abuse of the process of the court. Learned counsel pointed out that the lower appellate court has given convincing and cogent reasons to reject the delay condonation petition and consequently the appeal also, and no interference is called for. 10. It must be stated that there is considerable force in the submissions made by the learned counsel for the respondent. The judgment of the trial court is dated 06.08.1981. The records indicate that the plaintiffs 1 and 3 had filed A.S.No.136/1982, wherein the present appellants were shown as respondents 2 and 3 and that appeal was dismissed on merits on 06.08.1984. Thereafter, in 1996 plaintiffs 2 to 4 also filed an appeal as A.S.No.61/1996. That was dismissed as not pressed. The lower court while disposing of the interlocutory application for condonation of delay has observed that appeal as A.S.No.61/1996 was in fact filed by the same counsel who filed present appeal along with petition to condone the delay. S.A.No. 528 of 1999 6 11. Further, the lower appellate court has found that the certificate produced before the said court and the evidence adduced in support of the petition are not convincing enough and for sufficient reasons rejected the same. 12. It is quite unfortunate that the process of court is being grossly misused. It is more unfortunate that the very same counsel who filed an earlier appeal in which one of the appellants in the present appeal was an appellant has chosen to conceal that fact and has chosen to have an affidavit filed with totally false statements. The lower appellate court was fully justified therefore in dismissing the Interlocutory Application for condonation of delay. 13. As rightly pointed out by the learned counsel for the respondents, the present proceedings are nothing but a gross abuse of process of the court. Judicial propriety prevents this court from saying further in the matter except that conduct is really abhorrent. No grounds are made out to interfere with the judgment and decree of the courts below. The court below was right in S.A.No. 528 of 1999 7 dismissing the application for condonation of delay and consequently the appeal also. This appeal is without any merits. It is accordingly dismissed and considering the conduct of the parties, it is felt that exemplary costs should be awarded and a sum of Rs.10,000/- is awarded the contesting respondents as costs. P.BHAVADASAN, JUDGE. ln