IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 FAO.No. 228 of 2007() --------------------- AGAINST THE ORDER DATED 14/07/2006 IN IA.620/05,621/05 IN OS.73/1992 of SUB COURT, OTTAPPALAM .................... APPELLANT/PETITIONER/PLAINTIFF -------------------------------------------------- MANIKANDAN, S/O LATE PAZHANISWAMY GOUNDER, AGED 33 YEARS, AGRICULTURE, RESIDING IN AGALI AMSOM, DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT. BY ADV. SRI.M.RAMESH CHANDER RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------- 1. LAKSHMI, D/O JANAKI AMMA, AGED NOT KNOWN RESIDING IN AGALI AMSOM,DESOM IN MANNARKKAD TALUK, PALAKKAD DISTRICT. 2. RANI, RESIDING AT -DO- -DO- 3. KRISHNAN, RESIDING AT -DO- -DO- 4. SARASA, RESIDING AT -DO- -DO- 5. ACHUTHAN, RESIDING AT -DO- -DO- 6. AMRITHA, RESIDING AT -DO- -DO- 7. SELVAN, RESIDING AT -DO- -DO- 8. NATARAJAN, S/O LATE MALLAYYA GOUNDER, AGED NOT KNOWN, AGALI AMSOM, DESOM, MANNARKKAD TALUK. FAO 228/07 -2- 9. LAKSHMI, W/O LATE PAZHANISWAMI GOUNDER, -DO- -DO- 10. RUGMINI, W/O LATE PAZHANISWAMI GOUNDER, -DO- -DO- 11. BABY, W/O LATE PAZHANISWAMI GOUNDER, -DO- -DO- 12. SUMATHI, W/O LATE PAZHANISWAMI GOUNDER, -DO- -DO- 13. KALY, W/O LATE PAZHANISWAMI GOUNDER, -DO- -DO- 14. GANDHIMATHI, D/O LATE PAZHANISWAMY GOUNDER, AGED 25 YEARS, AGALI AMSOM, DESOM, MANNARKKAD TALUK. 15. BHANUMATH, D/O -DO- AGED 24 YEARS, -DO- -DO- 16. SUBRAMANIAN, S/O -DO- AGE NOT KNOWN, R/AT -DO- -DO- 17. KUMARASWAMI GOUNDER, FATHER'S NAME NOT KNOWN, R/AT -DO- -DO- 18. ARUMUGHA SWAMI, S/O MALAYAPPA GOUNDER, AGE NOT KNOWN, R/AT -DO- -DO- 19. SUBHALAKSHMI AMMA, W/O CHADAGAPPA GOUNDER, AGED NOT KNOWN, R/AT -DO- -DO- 20. RANGASWAMI, S/O LATE SUBRAYYAN CHETTIAR, AGE NOT KNOWN, R/AT -DO- -DO- 21. VELUSWAMI, S/O. -DO- -DO- 22. PONNUSWAMI, S/O. -DO- -DO- 23. KAMALA, W/O PAZHANISWAMY, LEGAL REPRESENTATIVE OF DECEASED 3RD RESPONDENT, AGED NOT KNOWN, R/AT -DO- -DO- 24. VADIVELU, S/O. -DO- -DO- FAO 228/07 -3- 25. PUSHPA, W/O LATE BALAKRISHNAN, LEGAL REPRESENTATIVE OF DECEASED 7TH RESPONDENT, AGED NOT KNOWN, PUTHUR AMSOM, DESOM, MANNARKKAD TALUK. 26. GOKULA KANNAN, S/O -DO- -DO- 27. CHINNAKANNI, W/O LATE NATTU GOUNDER, LEGAL REPRESENTATIVE OF DECEASED 20TH RESPONDENT NATTU GOUNDER, AGED NOT KNOWN, RESIDING AT CHEERAKADAVU, PUTHUR AMSOM, PADAVAYAL VILLAGE, MANNARKKAD TALUK. 28. GOVINDARAJ, S/O -DO- -DO- 29. EASWARAN, S/O. -DO- -DO-. ADV. SRI.SIJI ANTONY FOR R8 SRI.SANTHEEP ANKARATH FOR R18-22,27-29 SMT.P.S.SHEEJA FOR R18-22,27-29 SRI.T.C.SURESH MENON FOR R5,25 & 26 SRI.JIBU P THOMAS FOR R5,25 & 26 SRI.P.S.APPU FOR R5,25 & 26 GOVERNMENT PLEADER SRI.T.C.SURESH MENON FOR R23-24 SRI.JIBU P THOMAS FOR R23-24 SRI.P.S.APPU FOR R23-24 SRI.K.JAYAKUMAR FOR R9,14,15 SRI.P.B.KRISHNAN FOR R9,14,15 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 15/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. --------------------------------------------------------------------------------- CM Appl.Nos.1260/07, 1563/08, IA Nos.3380/08, 3381/08 and FAO No.228 of 2007 ---------------------------------------------------------------------------------- Dated 15th June 2009 Judgment BHAVADASAN, J. The appellant herein had suffered a decree in OS No.73/92 before the Sub Court, Ottapalam, which was one for partition. The suit was listed for trial on 03.02.2000. On that date, since the plaintiff did not appear before the court below, the suit was dismissed for default. Later, the appellant filed two interim applications, namely, 620/05 and 621/05, for restoring the suit filed and also to condone the delay of 1859 days in filing the application for restoration. After hearing both sides, the court below, by order dated 14.07.2006, dismissed the petition for condonation of delay and consequently, the restoration application was also dismissed. It is the said order that is under challenge in this appeal. 2. Along with the appeal, the appellant has filed CM Application No.1260/07 for condonation of 254 days' delay in FAO 228/07 2 filing the appeal. Thereafter, it appears, during the pendency of the proceedings, he filed CM Application No.1563/08 for condoning the delay in filing the impleading petition and also IA Nos.3380/08 and 3381/08, respectively to implead the legal heirs of the 7th respondent, who died pending proceedings and to set aside the abatement. 3. It is seen from the records that the court below had considered the two applications, namely, the application for restoration of the suit and also the petition to condone the delay in detail. It is interesting to note that no specific reason as such, is given for seeking restoration of the suit, after condoning the delay. The court below has observed that the reason given by the petitioner for the delay for having the suit restored to file is that after the filing of the suit, he had gone in search of a job to Madras and therefore, he could not attend the case. According to the appellant, when he returned on 28.01.2003, he came to know about the dismissal of the suit when he had occasion to go to his counsel to enquire about another case. Thereafter, he claimed that he was suffering from rheumatic illness for a long FAO 228/07 3 period. 4. Even though the above reasons were given for the delay, the appellant could not produce any evidence in support of his claim. The court below also found that his claim that he was unaware of the suit for a long time, cannot be true. Even after coming to know about the dismissal of the suit, he took another two years to file the petition for restoration of the suit. 5. The learned counsel appearing for the appellant was unable to show any legal or factual infirmity in the order of the court below. The court below had considered the reasons for the delay in detail and has come to a conclusion that the claim of the petitioner lacks bona fide. 6. Before this court also, at all stages, it can be seen that the appellant had been indifferent and casual. Even after having his petition dismissed by the court below, he did not choose to file the appeal immediately and within time. He filed the petition for condoning the delay of 254 days in filing the appeal. After coming to know of the death of the 7th respondent, he took another 552 days to file the impleading petition to have his legal FAO 228/07 4 heirs impleaded. It can be seen that it is a story of continuous default and indifference on the part of the appellant petitioner. He is not at all serious about the suit. The attempt seems to be to protract the suit causing much injury and inconvenience to others in the suit. Further, the legal heirs of the deceased 7th respondent is sought to be impleaded only in the appeal. There is no prayer to implead them in the delay condonation petition. The appeal will lie on file only on condonation of delay. Therefore, no purpose is served in considering elaborately all the petitions. It does not appear to be proper to condone the delay in filing the appeal as no acceptable reasons are given for the delay. Accordingly, the CM Applications and Interim Applications are dismissed and consequently, the appeal also stands dismissed. SD/-P.R.RAMAN, JUDGE SD/-P.BHAVADASAN, JUDGE TRUE COPY PA TO JUDGE sta FAO 228/07 5 FAO 228/07 6