IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 31ST MARCH 2011 / 10TH CHAITHRA 1933 RSA.No. 389 of 2011() --------------------- AS.241/2009 of II ADDL. DISTRICT COURT, TRIVANDRUM OS.15/2006 of SUB COURT,NEYYATTINKARA .................... APPELLANTS/APPELLANTS/DEFENDANTS: -------------------- 1. PARAMESWARAN ANIR, S/O.KESHAVA PILLAI, AGED 73 YEARS, RESIDING AT T.C.36.632, KIZHAKKEKULUTHUMKARA VEEDU, ERAVIPEROOR MURI, PALKULANGARA, THIRUVANANTHAPURAM. 2. SARADA AMMA, D/O.PONNAMMA PILLAI, AGED 71 YEARS, RESIDING AT KOVILVILA VEEDU, THIRUPURAM, NEYYATTINKARA. 3. SAVITHRI AMMA, D/O.PONNAMMA PILLAI, AGED 69 YEARS, RESIDING AT T.C.43/139, PADANAVILA VEEDU, MANACADU.P.O., IRANIMUTTOM VILLAGE, THIRUVANANTHAPURAM. (PASSED AWAY ON 30/8/2010) REP. BY HER SON PADMAKUMARAN THAMPI AGED 45 YEARS RESIDING AT -D0- 4. SREEKUMARI AMMA, D/O.PONNAMMA PILLAI, RESIDING AT SREE NILAYAM, VAZHUTHOOR, PERUMPAZHUTHOOR, NEYYATTINKARA. 5. MADHAVAN NAIR, S/O.KESHAVA PILLAI, AGED 61 YEARS, RESIDING AT REVATHY, PERUMKADAVILA VILLAGE, NEAR CHECK POST, NEYYATTINKARA. 6. RADHAKRISHNAN NAIR, S/O.KESHAVA PILLAI, AGED 66 YEARS, RESIDING AT SARADA VILASOM, PUNNAKULAM, KOTTUKAL NEYYATTINKARA. BY ADV. SRI.AYYAPPAN SANKAR ADV.ABHIJETT LESSLI RESPONDENT/ RESPONDENT/PLAINTIFF: ------------------------------------------- CHITRA LEKHA, S/O.SUKUMARAN NAIR, AGED 27 YEARS, RESIDING AT HOUSE NO.7, MUTTAKKADU COLONY, PERUMPAZHUTHOOR.P.O., NEYYATTINKARA 695 303. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 31/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.389 OF 2011 --------------------------------------------- Dated 31st March, 2011 JUDGMENT Defendants in O.S.15/2006 on the file of Sub Court, Neyyattinkara are the appellants. Second appeal is filed challenging the dismissl of A.S.241/2009 filed by the appellants before District Court, Thiruvananthapuram challenging the preliminary decree passed on 30/6/2007. A.S.241/2009 was filed along with I.A.2449/2009, an application filed under Section 5 of Limitation Act to condone the delay of 826 days in filing the appeal. Learned Additional District Judge dismissed I.A.2449/2009 finding that there is no sufficient cause to condone the inordinate delay. RSA 389/11 2 2. Learned counsel appearing for the appellants was heard. 3. Argument of the learned counsel is that the appellants have properly explained the delay caused in I.A.2449/2009 and learned District Judge did not properly appreciate the cause shown for the delay and based on the principles laid by the Honourable Supreme Court in Collector, Land Acquisition Anantnag & another v. Katiji & others (1987 (2) SCC 107), the delay should have been condoned and an opprotunity should have been granted to dispose the appeal on merits. Learned counsel submitted that first appellant was conducting the case and as explained in the affidvit filed in support of I.A.2449/2009, he was laid up due to Parkinson disease by the end of 2006 and since then he was laid up and was under treatment and the fact was intimated to the RSA 389/11 3 counsel who was appearing for the appellants before the trial court and the counsel informed them that interest of the appellants will be protected and they will be duly intimated, but the counsel did not intimate the appellants about the case being posted for evidence or the decree passed. It was submitted that appellants received a notice in the application filed by the respondent/plaintiff for correction of the preliminary decree as well as the application for passing a final decree and the appellants thereafter made enquiries through the counsel who was subsequently engaged, to appear in the final decree application and then only appellants came to know that preliminary decree was passed on 30/6/2007 without adducing evidence on the side of the appellants and in such circumstances, they were advised to file an appeal and there RSA 389/11 4 was a delay of 826 days and delay was not caused with ulterior motive and in the interest of justice, first appellate court should have condoned the delay. 4. Even though a second appeal will lie against the dismissal of the first appeal after dismissing the application to condone the delay in filing the first appeal as it is a decree, the scope of such an appeal is limited. Appellants in such an appeal can canvass only the correctness of the dismissal of the application for condonation of delay and not on the merits of the judgment of the trial court. 5. Learned counsel made available copy of the affidavit filed in I.A.2449/2009. The affidavit was filed by the sixth appellant on behalf of all the appellants. Affidavit discloses that case projected in I.A.2449/2009 RSA 389/11 5 to condone the delay was that his eldest brother, the first appellant was conducting the case on behalf of the appellants and later he was affected with serious illness, which was diagnosed as “Atypical Parkinsonism” and by the end of 2006, he was gradually over powered by the illness and since then he was continuing Ayurveda treatment and later allopathic treatment. It is contended that as he was laid up and virtually bed ridden, the pathetic situation was informed to the counsel who promised to take care of the interest of the appellants and appellants were unaware of the decree only later when they received notice in the application filed for correction of the preliminary decree. Learned District Judge has noted that in I.A.1802/2008, the application filed for correcting the preliminary decree notice was received by the appellants on RSA 389/11 6 3/1/2009 and that application was allowed on 4/3/2009. These aspects are not disputed. Final decree application was filed thereafter. Learned District Judge found that even as per the affidavit of the sixth appellant, appellants should be aware of the preliminary decree at least on 3/1/2009, when they received copy of the application filed by the respondent seeking correction of the preliminary decree. The affidavit shows that appellants engaged another counsel in that application. But steps were not taken to fie an appeal. Argument of the learned counsel is that at that time, as per the decree only the 1/7th share was given to the respondent over items 1 to 3 and it is by order dated 4/3/2009 in I.A.1802/2008 the entire right over items 1 to 3 were given to the appellants and then the counsel advised them to file an appeal. When the appellants RSA 389/11 7 should be aware of the preliminary decree at least on 3/1/2009, appellants have a duty to explain the delay from 3/1/2009 till the appeal was filed on 4/11/2009. There is absolutely no explanation for the delay in the affidavit filed in support of the application from 3/1/2009 or at least from 4/3/2009 the date on which I.A.1802/2008 was allowed till 4/11/2009. Even if the first appellant was laid up as canvassed by the appellants, appellants 5 and 6 are male members who are capable of prosecuting the suit. There is no explanation why they did not approach the counsel when the first appellant was allegedly incapable of conducting the case and why they did not give proper advice to the counsel to adduce evidence, if evidence is to be adduced in the suit. Considering the affidavit filed by sixth appellant in support of the application to RSA 389/11 8 condone the delay, I find that Additional District Judge was perfectly correct in holding that the inordinate delay in filing the appeal was not explained and therefore, delay cannot be condoned. I find no substantial question of law involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.