IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 13TH OCTOBER 2011 / 21ST ASWINA 1933 RSA.No. 1089 of 2011() ---------------------- AS.146/2009 of I ADDL.SUB COURT,TRIVANDRUM OS.1935/1996 of II ADDL.MUNSIFF COURT.,TRIVANDRUM .................... APPELLANTS/APPELLANTS 1 TO3/COUNTER PETITIONERS 2 TO 4: ----------------------------- 1. RAJENDRAN,AGED 59 YEARS,S/O.KRISHNAN, PEZHUVILA VEEDU,KUNDAMAN BHAGOM, PEYAD P.O.,THIRUVANANTHAPURAM 2. MANOHARAN, AGED 56 YEARS, S/O.KRISHNAN,PEZHUVILA VEEDU,KUNDAMAN BHAGOM PEYAD P.O.,THIRUVANANTHAPURAM 3. GAJENDRAN,AGED 51 YEARS,S/O.KRISHNAN, PEZHUVILA VEEDU,KUNDAMAN BHAGOM, PEYAD P.O.,THIRUVANANTHAPURAM BY ADV. SRI.S.MOHAMMED AL RAFI RESPONDENT(S)/4TH APPELLANT & RESPONDENTS/5TH COUNTER PETITIONER & PETITIONERS & COUNTER PETITIONERS 1 & 6 TO 8: --------------- 1. BALAN,AGED 47 YEARS, S/O.KRISHNAN,PEZHUVILA VEEDU, KUNDAMAN BHAGOM,PEYAD P.O.,THIRUVANANTHAPURAM 695 573 2. P.PUSHPAM,AGED 58 YEARS, D/O.PONNAMMA,THINAVILA VEEDU,KURISUMUTTATHU MURI, VILAPPIL VILLAGE,THIRUVANANTHAPURAM 695 573. 3. P.VIJAYAMMA,AGED 47 YEARS, D/O.PONNAMMA,THINAVILA VEEDU,KURISUMUTTATHU MURI, VILAPPIL VILLAGE,THIRUVANANTHAPURAM 695 573. 4. P.C.CHANDRIKA,AGED 45 YEARS, D/O.PONNAMMA,THINAVILA VEEDU,KURISUMUTTATHU MURI, VILAPPIL VILLAGE,THIRUVANANTHAPURAM 695 573. 5. PONNAMMA,D/O.JANAKI, THINAVILA VEEDU,KURISUMUTTATHU MURI, VILAPPIL VILLAGE,THIRUVANANTHAPURAM 695 573. 6. P.BABY @ PAPPU,AGED 62 YEARS, D/O.PONNAMMA,THINAVILA VEEDU, KURISUMUTTATHU MURI,VILAPPIL VILLAGE, THIRUVANANTHAPURAM 695 573. 7. P.JAYA,AGED 37 YEARS, D/O.PONNAMMA,THINAVILA VEEDU, KURISUMUTTATHU MURI,VILAPPIL VILLAGE, THIRUVANANTHAPURAM 695 573. 8. K.SAKTHAN,AGED 72 YEARS, S/O.KUTTI SAMUEL,THINAVILA VEEDU, PRIYADARSHINI ROAD, VILAPPIL VILLAGE,PEYADU, THIRUVANANTHAPURAM 695 573. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. .............................................. R.S.A.NO.1089 OF 2011 ............................................. Dated this the 13th day of October, 2011. JUDGMENT Defendants 2 to 4 in O.S.No.1935/1996 on the file of the Second Additional Munsiff Court, Thiruvananthapuram are the appellants. Respondents 2 to 4 are the plaintiffs and other respondents are the other defendants. I.A.No.8388/2006 was filed by respondents 2 to 4 for passing a final decree in accordance with the preliminary decree. Under the preliminary decree, plaint A schedule property was directed to be divided into ten equal shares and plaint B schedule property into 20 equal shares and to allot three shares each to the plaintiffs. The learned Munsiff appointed a Commissioner. The Commissioner originally submitted Ext.C1 report and C1(a) and (b) plans. As there was some mistakes in the plans, the plans were remitted back to the Commissioner. The Commissioner submitted Ext.C1(c) and C1(d) plans. Thereafter the learned Munsiff as per order dated 14.11.2006 passed a final decree in accordance with the division made by the Commissioner. Exts.C1(a) and C1(c) plans were made part of the final R.S.A.NO.1089 OF 2011 : 2 : decree. The appellants filed A.S.No.146/2009 before the Additional Sub Court, Thiruvananthapuram challenging the final decree along with I.A.No.6177/2009, an application filed under Section 5 of the Limitation Act to condone the delay of 109 days in preferring the appeal The application was opposed by the plaintiffs. The learned Sub Judge by order dated 24.6.2011 dismissed the application for condonation of delay and consequently dismissed the appeal. 2. The second appeal is filed by the said appellants excluding the first appellant challenging the decree dismissing the appeal. The learned counsel appearing for the appellants was heard. 3. The argument of the learned counsel is that when the delay is only 109 days and it was properly explained by the appellants, the first appellate court should have condoned the delay and consider the appeal on merits. The learned counsel would argue that though the plaintiffs are entitled to 3/10 shares in the plaint A schedule property and 3/20 shares in the plaint B schedule property, the Commissioner has divided the property in such a way that the middle R.S.A.NO.1089 OF 2011 : 3 : portion was allotted to the plaintiffs, which caused difficulty to the other sharers and when the division is not equitable and fair, the first appellate court should have interfered with the final decree. 4. As the first appellate court did not consider the appeal and appeal was dismissed, dismissing the application for condonation of delay, the main question is whether the dismissal of the application filed under Section 5 of the Limitation Act was proper. The learned counsel made available a copy of I.A.No.6177/2009 filed before the first appellate court under Section 5 of the Limitation Act to condone the delay. The learned counsel on verifying the records furnished the relevant dates. The final decree was passed on 14.11.2006. The appellants filed copy application, for the certified copies of the final decree to file appeal on 29.11.2006. The certified copy was received by their counsel on 23.3.2009. The first appeal was filed on 13.8.2009. Admittedly there was a delay of 109 days in filing the appeal. The question is whether that delay is properly explained. The delay is explained in paragraphs 6 R.S.A.NO.1089 OF 2011 : 4 : and 7 of the affidavit filed by the first appellant on behalf of the other appellants. The case in paragraph 6 of the affidavit is that copy application for certified copy of the decree was filed through their counsel in time and appellants were informed that it will take time for preparing copy of the decree and therefore they waited for the information to be received from the counsel. It is advantages to quote further averments “ while so on 10.6.2009 I received notice of the execution petition. Then only I came to know about the decree and I immediately contacted my counsel's office, and it was informed that the case bundle was misplaced and because of that, the matter could not communicated to me in time”. The allegation in paragraph 7 is that there is no wilful laches or negligence on their part in preferring the appeal and the appeal ought to have filed on or before 17.4.2009 and as it was not filed, there is a delay of 109 days and it is to be condoned. 5. Even on the admitted facts, the appellants' counsel received certified copy on 23.3.2009. Even if their case is that they were under the impression that the counsel will R.S.A.NO.1089 OF 2011 : 5 : inform them about receipt of the certified copy and as the records were misplaced by the counsel, intimation was not given, is accepted, the affidavit makes it clear that the appellants received notices in the execution petition on 10.6.2009 and immediately they contacted their counsel. Therefore as per the case they contacted their counsel either on 11.6.2009 or immediately thereafter. But the appeal was filed only on 13.8.2009. There is absolutely no explanation for the delay from 11.6.2009 to 13.8.2009 in the application filed before the court below. The appellants have no case that the records were not traced when they met the counsel immediately on receipt of the notice in the execution petition on 10.6.2009. On the other hand, the case is that they contacted their counsel and they were told that the records were misplaced and therefore notice was not sent. There was no case that even when they met the counsel, the records were not available or that they were not traced out. If that is so, the finding of the first appellate court that delay was not properly explained and therefore it cannot be condoned is perfectly illegal. R.S.A.NO.1089 OF 2011 : 6 : Moreover, going through the final decree, it is seen that appellants though entitled to shares did not pay court fee. Though it was argued by the learned counsel that allotment of the middle portion to the plaintiffs is unfair and inequitable, such a contention was not raised before the trial court. Even after the Commissioner submitted the report or plans dividing property and allotting plots allotted to respondents 2 to 4 the appellants did not express their willingness to allot another portion of the property to them, which according to them will not cause inconvenience. In such circumstances, I find no substantial questions of law involved in the appeal. The appeal is dismissed. M. SASIDHARAN NAMBIAR, JUDGE. cl