IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR TUESDAY, THE 1ST JANUARY 2008 / 11TH POUSHA 1929 CMA.No. 241 of 1998() --------------------- AGAINST THE ORDER DATED 27/08/1998 IN IA 1018/98 IN AS.158/1995 of DISTRICT COURT, PALAKKAD .................... APPELLANT: PETITIONER: ------------------------------------------ VASUDEVAN NAIR, S/O.PARU AMMA, CHOLLOTTIL HOUSE, KUNDALASSERY, KONGAD, PALAKKAD.( D I E D). *ADDL.APPELLANTS 2 TO 4 ARE IMPLEADED: A2. P. MADHAVIKUTTY AMMA, W/O.VASUDEVAN NAIR, CHOLLOTTIL HOUSE, KUNDALASSERY, KONGAD, PALAKKAD. A3. SREEJA BALAKRISHNAN, D/O.VASUDEVAN, AGED 30 YEARS, CHOLLOTTIL HOUSE, KUNDALASSERY, KONGAD, PALAKKAD. A4. SANTOSH, S/O.VASUDEVAN NAIR, CHOLOTTIL HOUE, KUNDALASSERY (PO), KERALASSERY, PALAKKAD, PIN – 678 641. (*ADDL.APPELLANTS 2 TO 4 IMPLEADED AS THE LR'S OF THE DECEASED SOLE APPELLANT VIDE ORDER DTD. 18/10/05 IN I.A.NO.3061/05) BY ADV. SRI.T.M.SUNIL SMT.S.CHITHRA Kss ..2/- ...2.... CMA.NO.241/1998 RESPONDENTS: RESPONDENTS: ------------------------------------------------- 1. THATHA, W/O.MANICKEN, RESIDING AT AKKAPARAMBIL VEEDU, CHAMBRAKULAM (PO), KOTTAYI, PALAKKAD. 2. KUTTAN, S/O.CHAMI RESIDING AT ..DO..DO.... *3. JANAKI, W/O.NARAYANAN RESIDING AT...DO...DO...(DIED). 4. LAKSHMI, W/O.KANNAN, RESIDING AT...DO...DO.... 5. RAMACHANDRAN, S/O.CHAMI, RESIDING AT CHATHANKALI VEEDU, KUNDALASSERY AMSOM, KONGAD, PALAKKAD. *6. PONNAN, S/O.CHAMI, RESIDING AT ..DO...DO....(DIED) 7. KUMARAN, S/O.CHAMI, RESIDING AT ...DO..DO.... 8. RUGMINI, W/O.SIVASANKARAN, RESIDING AT KIZHAKKETHIL VEEDU, CHUNANGAD AMSOM, OTTAPALAM TALUK. *9. PADMAVATHY, W/O.VASUDEVAN, RESIDING AT PANDIKKAD HOUSE, KALMANDAPAM, PALAKKAD. (DIED) *ADDL.R10 IS IMPLEADED: R10. SATHIASEELAN, S/O.VASUDEVAN, CHOLOTTIL HOUSE, KUNDALASSERY (PO), KERALASSERY, PALAKKAD – 678 641. (*ADDL.10TH RESPONDENT IMPLEADED AS THE LR'S OF THE DECEASED SOLE APPELLANT AS PER THE ORDER IN I.A.NO.3061/05 DTD. 5/10/07) Kss ...3/- ...3.... CMA.NO.241/1998 *ADDL.R11: RAMADASAN, S/O.NARAYANAN, *ADDL.R12: UNNI, S/O.NARAYANAN, *ADDL.R13: PRASANNA, D/O. NARAYANAN, *ADDL.RESPONDENTS 11 TO 13 RESIDING AT ATHANIPARAMBU, KUNDALASSERY P/O., (VIA) KERALASSERY, PALAKKAD. *ADDL.R14: CHANDRIKA, W/O.PONNAN, CHATHANKALI HOUSE, KUNDALASSERY P.O., (VIA) KERALASSERY, PALAKKAD. *ADDL.R15: THANKAN, D/O.PONNAN,..DO...DO.... *ADDL.R16: VASUDEVAN, FATHER'S NAME NOT KNOWN, 70, CORPRATIS NAGAR, OPP.ANBU NAAGAR, B.K.ROAD., SARANAVANAPETTI P.O., COIMBATORE. *ADDL.R17: MINI ,D/O.VASUDEVAN, *ADDL.R18: SAJITH, S/O.VASUDEVAN, *ADDL.R19: ANITHA, D/O.VASUDEVAN, *ADDL.RESPONDENTS 11 TO 13, ADDL.RESPONDENTS 14 AND 15 AND ADDL.RESPONDENTS 16 TO 19 IMPLEADED AS THE LR'S OF THE DECEASED RESPONDENTS 3, 6 AND 9 RESPECTIVELY AS PER THE ORDER IN I.A.NO.407/06 DTD. 16/08/07. R1 TO R5 BY ADV. SMT.K.MEERA R7 SRI.V.CHITAMBARESH R7 SRI.KRISHNA PRASAD. S SRI.A.S.BRIJESH THIS CIVIL MISC. APPEAL HAVING BEEN FINALLY HEARD ON 01/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss K.PADMANABHAN NAIR, J. ------------------------------- C.M.A.No.241 of 1998 ------------------------------- Dated this the 1st January, 2008. J U D G M E N T The additional 5th respondent in A.S.No.158 of 1995, on the file of the District Court, Palakkad, is the appellant. The appeal is filed against the order passed by the lower appellate court dismissing the application filed by the appellant to set aside the decree and judgment passed in the appeal ex parte, and also to post the appeal for re-hearing. 2. The short facts necessary for the disposal of the appeal are as follows. Respondents 6 to 8 in the C.M.A. filed the suit for partition. A preliminary decree was passed. It was followed by a final decree on 30.6.1994. According to the appellant, plaintiffs filed E.P.No. 83/1995 for executing the decree and the properties allotted to the plaintiffs were delivered over to them on 30.3.1995. Thereafter, on 19.8.1995, they sold the property to the appellant. The further case of the appellants was that long after the passing of the final decree and after effecting delivery, respondents 1 to 5 filed A.S.No.158/1995 with a petition to condone the delay of 319 days. CMA.No.241/1998 2 Appellant was not impleaded in the appeal. Appeal was allowed and the matter was remanded. It was averred that appellant came to know about this appeal and remand only on 27.7.1998, when he received a notice from the Commissioner appointed by the trial court. He made enquiries, he came to know that he was impleaded as additional 5th respondent in this appeal, but without serving any notice, the appeal was allowed and remanded. He filed I.A.No.1018/1998 under Order XLI Rule 21 of Civil Procedure Code for set aside the ex parte decree and judgment passed in the appeal, and to post the same for re-hearing. That was objected to by respondents 1 to 5. The lower appellate court dismissed that application. Challenging that order, this appeal is filed. 3. The only question arising for consideration in this appeal is whether the appellant should be given an opportunity to contest the appeal on merits. Respondents 6 to 8 filed O.S.No.809/1991 for partition. A preliminary decree was passed in that case. A final decree was also passed on 30.6.1994. Plaintiffs in that suit filed E.P.No. 83/1995, and the property allotted to the plaintiffs was delivered to them on 30.3.1995. The plaintiffs sold the properties to the appellants. The sale deed was executed on CMA.No.241/1998 3 19.8.1995. Defendants 1 to 4 and 6 filed A.S.158/1995 on 18.8.1995. There was delay of more than 319 days in filing the appeal. Appellants in the first appeal filed I.A.No.1267/1995 for condoning the delay. In the appeal and delay petition, the present appellant was not arrayed as a respondent. Respondents 6 to 8 appeared before the lower appellate court and submitted that they had alienated the property, and hence, the purchaser may be impleaded. The lower appellate court on 28.2.1997 directed the appellant before the lower appellate court to file a petition for impleading the purchaser of the property as additional respondent. Respondents 1 to 3 in the first appeal, who are respondents 6 to 8 in C.M.A. were directed to furnish correct address of the appellant in this CMA. The case was posted to 20.3.1997. In the meanwhile, appellants before the lower appellate court filed I.A.Nos. 377 and 378 of 1997 to implead the purchaser in the appeal and to amend the cause title of the appeal memorandum. Those petitions were filed on 19.3.1997, and came up for hearing before the lower appellate court on 23.3.1997. The lower appellate court allowed both the applications, and directed the appellants to take steps to issue notice to the supplemental respondent and posted the case to 13.6.1997. On that date, no steps were taken and the case CMA.No.241/1998 4 was posted to 23.8.1997. On that date, the notice issued to the present appellant was returned with an endorsement that the process server who was deputed to effect service was unable to trace out the whereabouts of the appellant. It was further stated that he was unable to get the endorsement attested by any witness also. On 23.8.1997, the lower appellate court took note of that fact and directed the appellant to take steps to effect substituted service on 5th respondent by publication and posted the case to 2.9.1997. Appellants in the first appeal filed I.A.No.1101/1997 on 27.8.1997 with a prayer to permit him to effect service of notice to Additional 5th respondent by 'affixture in a paper'. That application was allowed. In the I.A., the lower appellate court passed an order directing the appellant to publish the notice in Mangalam Daily. But in the proceedings paper, the court below passed an order to publish the notice in a news paper and also to affix the same. On 21.10.1997, appellant produced the paper. The case was posted for appearance of the 5th respondent to 5.11.1997. On that date, the appeal was set ex parte and posted the case for hearing to 1.12.1997. On that date, it was posted to disposal on 11.12.1997. On that date, the lower appellate court suo motu re- opened the case and again posted for re-hearing on 3.1.1998. On CMA.No.241/1998 5 3.1.1998, the case posted for disposal on 5.1.1998, and on that date, that the appeal was allowed. 4. There was delay in filing the appeal. The appellants filed I.A.No.1267/1995 to condone the delay of 319 days. In the petition, the orders are seen written at two places. The additional sheet attached to the I.A. would give an impression that no final order was passed in the I.A. But at another place, it is written that the petition to condone the delay was allowed on 3.1.1998 by separate order. But the cause title of the fair copy of the order passed in I.A.No.1627/1995 shows that it was allowed on 5.1.1998. It is highly doubtful whether the I.A. was actually considered and allowed either on 3.1.1998 or on 5.1.1998. If actually the delay was condoned on 3.1.1998, the court ought to have posted the appeal for hearing under Order XLI Rule 11 of Civil Procedure Code to 5.1.1998, in which case the appeal ought not have been disposed of finally on that day. In fact, the appellant was never made a respondent in the petition to condone the delay. So, going by the date given in the I.A. and appeal, the petition to condone the delay and the appeal were allowed on 5.1.1998. It is trite law that unless the delay is condoned, there will not be a properly constituted appeal on the file of the court. As I CMA.No.241/1998 6 have already stated, there was no prayer in the petitions, I.A.Nos. 377 & 378/1997, to implead the appellant in the petition to condone the delay. In I.A.No.311/1997 also, there was no prayer to publish the notice of the I.A.. The paper produced shows that the notice of delay petition was not published at all. The endorsement made by the process server regarding reasons for non-service is suspicious. He had stated that he was unable to find the whereabouts of the additional 5th respondent. It creates a genuine doubt as to whether he had made any enquiry at all. The lower appellate court has not considered any of these aspects at all while dismissing the petition for restoration. It is also to be noted that the lower appellate court directed the appellant to take steps to publish the notice in the paper, and also to affix the same. It is not clear whether the notice was affixed. After publishing the notice, sufficient time was not given to the appellant to appear before the lower appellate court. So, the reasons stated by the lower appellate court that there was proper service of notice on the appellant is against the facts. So, I have no other option, but to set aside the order of remand passed by the lower appellate court and also the order passed by it in I.A.No.1267/1995, and direct the lower appellate court to re-hear the petition to condone the delay and CMA.No.241/1998 7 appeal. The court below shall allow the appellants in A.S.No.158/1995 to amend the cause title of I.A.No.1267/1995 and implead the appellant as an additional respondent in that petition. In the result, I.A.No.1018/1998 filed by the appellant, 5th respondent in A.S.No.158/1995 is allowed. The judgment passed by the lower appellate court is hereby set aside. The lower appellate court is directed to take I.A.1267/1995 and A.S.No.158/1995 back to file and dispose of the same afresh, in accordance with law, after affording both sides an opportunity to present their case. There will be a direction to the lower appellate court to hear and dispose of the I.A. and appeal, as expeditiously as possible, at any rate, before the court closes for summer vacation. It is made clear that no fresh notice need be issued to the parties. Parties are directed to appear before the court below on 15.2.2008. K.PADMANABHAN NAIR, JUDGE nj. K.PADMANABHAN NAIR, J. ------------------------------- C.M.A.No.241 of 1998 J U D G M E N T Dated:1st January, 2008. -------------------------------