IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 RSA.No. 683 of 2006() --------------------- AS.No.51/2003 of ADDITIONAL DISTRICT COURT (ADHOC)-II, KOLLAM OS.400/1989 of ADDL.SUB COURT,KOLLAM .................... (S): APPELLANTS/RESPONDENTS 1 TO 5/DEFENDANS 2 TO 5; ------------------------------------------------------------------- 1. ANJOE ALLEN, S/O. ARTHUR ALLEN, RESIDING AT ST.JOHN'S BUNGLOW, OLIKKARA, PUNNATHALA CHERI, KOLLAM. 2. EVAN MORRISON, D/O.ARTHUR ALLEN, RESIDING AT 64, STUVERT AVENUE, SOUTH HARO, MIDDLE SEX, LONDON, U.K. 3. ALMA REGO, D/O. ARTHUR ALLEN, RESIDING AT KAVILL, 1ST FLOOR,6TH NO.OWNER'S COURT THANA, MUMBAI. 4. BERTHA PINTO, D/O. ARTHUR ALLEN, RESIDING AT 3RD FLOOR, KADWAY BUILDING, OPPOSITE TO REGAL THEATRE, COLABA, MUMBAI. 5. PAMELA ALLEN, WIDOW OF ALFI ALLEN, RESIDING AT ST.JOHN'S BUNGLOW OLIKKARA, PUNNATHALA CHERI, KOLLAM. (APPELLANTS 2 AND 5 ARE REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER THE 1ST APPELLANT HEREIN). BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.SREEKANTH.K.R SRI.JIBU P THOMAS SRI.SUNIL J.CHAKKALACKAL RESPONDENT(S): APPELLANT/RESPONDENTS 6 TO 9/PLAINTIFFS/LRS.OF D1: ----------------------------------------------------------------- 1. FRANKPET FERNANDEZ, S/O. JOSEPH FERNANDEZ, RESIDING AT THANKASSERY, KOLLAM, NOW RESIDING AT SUNNY SIDE NO.4, WHITES ROAD, MADRAS. 2. ANITHA ALLEN, D/O. LATE ALFY ALLEN. 3. ANINA ALLEN, D/O. LATE ALFY ALLEN. 4. AKLEEN ALLEN, S/O.LATE ALFY ALLEN. RESPONDENTS 2 TO 4 ARE RESIDING AT ST.JOHN'S BUNGLOW, OLIKKARA, PUNNATHALA CHERI, KOLLAM. 5. MORIYA FERNANDEZ, W/O.ALROY FERNANDEZ, RESIDING AT NO.13, KIMBARLY STREET, ROOTTYHITHA 2766, NEW SOUTH WALES FROM 106, MUTHYYA STREET, MADRAS. ADV. SRI.A.V.THOMAS FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. ------------------------------------------------------------- R.S.A.No.683 of 2006 -------------------------------------------------------------- Dated this the 15th day of June, 2009 JUDGMENT The first plaintiff in O.S.No.400/89 on the file of the Additional Sub Judge, Kollam is the appellant. The second appeal is directed against the judgment and decree in A.S.No.51 of 2003 on the file of the Additional District Judge (Adhoc), Kollam. 2. The suit filed for partition and separate possession of one-third of one-half share each for two plaintiffs. The defendants are also sharers. 3. The first defendant in the suit died on 22/8/1993. According to the plaintiffs the factum of death of the first defendant was not brought to the notice of the court by the counsel for the first defendant. Defendants 2 to 5 are brothers and sisters of the first defendant. Plaintiffs are also related to the defendants. But neither the counsel was appearing for defendants 1 to 5 reported the death to the Court. After a period of 7 years, 2 months and 12 days the second defendant reported the death of the first defendant that is on 10/2/2000 and consequently I.A.No.582/01 and 583/01 were filed by the R.S.A.No.683 of 2006 2 plaintiffs for setting aside the abatement and for contention of delay of 7 years, 2 months and 12 days in impleading the legal heirs of first defendant. I.A.No.335/03 was also filed for setting aside the abatement. The trial court by judgment dated 27/2/03 dismissed I.A.No.582/01, 583/01 and 335/03 and consequentially the suit was dismissed as abated. 4. In the appeal filed by the first plaintiff the court considered the question whether the sufficient ground is made out for condoning the delay of 7 years, 2 months and 12 days. The counsel for the plaintiff submitted that the date of death of the first defendant is known to him only on 10/2/2000, when the second defendant reported the death. Immediately applications were filed by the plaintiff for setting aside abatement for condoning the delay of 7 years, 2 months and 12 days and for impleading the legal heirs of the first defendant. The appellate court has also noted the fact that the same counsel was appearing for all the defendants 1 to 5 and that the counsel did not intimate the death to the court. The trial court had only dismissed the suit for not impleading the legal heirs of deceased first defendant. It is not known for what reason the suit was dismissed when there are four other defendants in the case. The Appellate Court on merit held that there is lapse on the part of the counsel of defendants 1 to 5 to R.S.A.No.683 of 2006 3 report the death of the first defendant in time and that is the reason why the legal heirs of the deceased first defendant are not impleaded in time. The Lower Appellate Court also on facts held that the plaintiff cannot be blamed for not impleading the first defendant in time when the defendants or their counsel failed to intimate about the death in time. The Lower Appellate Court also held that there is reasonable explanation for not filing the application in time. In the circumstances the Lower Appellate court set aside the order in I.A.No.582/01 and 583/01 and allowed the applications. The dismissal of the suit as a whole is bad in law since there are other defendants also in the suit. Moreover the delay occurred in filing application for setting aside the abatement has been reasonably explained by the petitioners in I.A. in the respective applications. In fact the delay was caused due to the attitude of the other defendants in not intimating the court about the death of the defendant. The case requires consideration on merits. Therefore the remand of the case for fresh consideration does not call for any interference from this court. 5. Moreover the order of remand is not challenged by filing C.M.Appeal instead of the second appeal under 100 of C.P.C. The second appeal lies only against the decree and judgment passed by the Lower R.S.A.No.683 of 2006 4 Appellate Court. Since it is an order of remand after adjudicating an interim application, no appeal under 100 will lie against the order of the remand. For these reason the appeal fails. The second appeal is without any merit. No substantial question of law arises for consideration in this appeal. This appeal fails and accordingly dismissed. (HARUN-UL-RASHID, JUDGE) skj.