IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 RSA.No. 1218 of 2004() ---------------------- AS.42/1996 of ADDITIONAL DISTRICT COURT (ADHOC), PATHANAMTHITTA OS.484/1995 of MUNSIFF COURT, RANNI .................... APPELLANT/PLAINTIFF: ---------------------------------------- VASU, S/O. KESAVAN, PEZHUMMOOTTIL THADATHIL HOUSE, ANGADI MURI, ANGADI VILLAGE. BY ADV. SRI.SATHISH NINAN SRI.SANTHOSH MATHEW RESPONDENT(S): DEFENDANTS: ------------------------------------------------------ 1. NARENDRAN, S/O. KESAVAN, RESIDING AT PEZHUMMOOTTIL THADATHIL HOUSE ANGADI MURI, ANGADI VILLAGE. 2. MONY @ VIJAYAMMA, W/O. NARENDRAN, DO. DO 3. KESAVAN, NEPHEW OF SANKARAN, RESIDING AT DO. DO. ADV. SRI.V.SETHUNATH FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = R.S.A.No.1218 of 2004 = = = = = = = = = = = = = = Dated this the 19 th day of November, 2008 JUDGMENT Heard both sides. 2. The appellant is the plaintiff in O.S.484 of 1995 on the file of the Munsiff's Court, Ranny. The said suit was originally filed in the year 1992 as O.S.No.143/1992 before the Munsiff's Court, Pathanamthitta which was subsequently transferred to the Munsiff's Court, Ranny. The said suit was one for declaration of title and injunction in respect of two items of properties scheduled to the Plaint as Item Nos. 1 and 2. The plaintiff and the 1st defendant are brothers. The 3rd defendant in the suit was the father of the plaintiff and the 1st defendant. He died during the pendancy of the second appeal. The 2nd defendant is the wife of the 1st defendant. The learned Munsiff, after trial, as per judgment dated 27.2.96, decreed the suit, so far as it relates to plaint schedule item No,1, but dismissed the suit with regard to the item No.2 holding that the said item was not properly identified. Aggrieved by the dismissal of the suit, so far as it relates to the plaint schedule item No.2, the plaintiff R.S.A.No.1218 of 2004 2 filed an appeal before the District Court, Pathanamthitta as A.S.No.42 of 1996. Pending the said appeal, he filed an application as I.A.No.1011/1997 for taking out a Commission to identify the Plaint Schedule Item No.2. As per the order dated 9.6.04, the lower appellate court allowed the said application but on condition that the appellant/plaintiff deposits a sum of Rs.10,000/- by way of costs to the respondents. The case was posted on 26.6.04 for payment of costs. The reason for fixing the such an exorbitant amount by way of cost was the alleged delay of 11 years in filing the Commission application. On 26.6.04, since the plaintiff/appellant was unable to pay the cost the appeal was dismissed. Hence this second appeal by the plaintiff. At the time of hearing this second appeal on admission, this Court formulated the following substantial questions of law:- 1. Did not the lower appellate court act illegally and arbitrarily in imposing costs of Rs.10,000/- as a condition for allowing the application for issuance of a commission and remanding the case to the trial court? 2. When the appeal was filed in the year 1996 and the Commission application was filed in 1997, did not the court below err in holding that there is 12 years delay in R.S.A.No.1218 of 2004 3 filing the commission application? 4. The only ground on which the relief was disallowed to the appellant/plaintiff by the trial court was the failure to identify Plaint Schedule Item No.2. It was for the said purpose that the plaintiff filed the aforesaid I.A for the issuance of a Commission in the appeal. The lower appellate court was inclined to allow the application without which no reliefs could be granted with regard to Plaint Schedule Item No.2. It was only on the wrong assumption, that 11 years had elapsed in filing the Commission application, that the lower appellate court fixed the onerous cost of Rs.10,000/-. The suit itself was filed in the year 1992 and the trial court disposed of the suit on 27.2.96. The appeal was filed in the year 1996. In the very next year the appellant had filed an application as I.a.No.1011 of 1997 for the issuance of a Commission. I fail to see as to how there could be a delay of 11 years unless the plaintiff/appellant could be held guilty of protracting the application till 2004, for which there is no finding also. Hence, the lower appellate court was not justified in imposing such an onerous condition for allowing the Commission application and remanding the case to trial court. But at the same time, the plaintiff who did not take out a R.S.A.No.1218 of 2004 4 Commission for identifying item No.2 when the matter has been pending before the trial court also cannot be left without any penalty for his latches. Accordingly, I fix a sum of Rs.1,000/- (Rupees one thousand only) by way of cost to be paid by the appellant/plaintiff to the respondents . The said costs shall be paid within two weeks from today. In case the cost is not paid, this second appeal will stand dismissed confirming the judgment and decree passed by the lower appellate court. In case the cost as ordered above is paid to the counsel appearing for the respondents within the time fixed hereinabove, the judgments and decrees passed by the courts below shall stand set aside and the matter shall stand remanded to the trial court which shall depute a Commission to identify Plaint Schedule Item No.2 and shall dispose of the suit expeditiously after giving both sides an opportunity to adduce further evidence if they deem fit. The substantial questions of law are answered in the affirmative. In case the cost as ordered above is paid, the parties shall appear before the trial court without any further notice on 19.12.08. Dated this the 19th day of November, 2008. V. RAMKUMAR, JUDGE sj