IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 2ND JULY 2010 / 11TH ASHADHA 1932 SA.No. 507 of 1999(B) ------------------------------- [AS.NO.84/1997 OF SUB COURT,NEYYATTINKARA, OS.NO.676/1991 OF II ADDL.MUNSIFF'S COURT, NEYYATTINKARA] .................... APPELLANT/APPELLANT/2ND DEFENDANT: --------------------------------------------------------------- NALLATHAMPI NADAR THAMPSON, AGED 50, MULLILAVUVILA VADAKKEYATTAM, PUTHEN VEEDU, VELLARADA VILLAGE, VELLARADA DESOM. BY ADV. SRI.G.S.REGHUNATH. RESPONDENTS/RESPONDENTS/PLAINTIFFS D3, D6 TO D12: --------------------------------------------------------------------------------------- 1. NJANAMMAL ELIZABETH, AGED 46 YEARS, THURUTHUMOOLA KIZHAKKE PUTHEN VEEDU, CHERIYAKOLLA DESOM, KUNNATHUKAL VILLAGE. 2. NJANAMMAL MARY, AGED 53 YEARS, THUNDUTHATTU PUTHEN VEEDU, VIRALI, KULATHOOR VILLAGE, KULATHOOR DESOM. 3. NJANAMMAL LOICE, AGED 38, VALIYAVILA PUTHEN VEEDU, KUZHICHANI, KEEZHKOLLA DESOM, CHENKAL VILLAGE. 4. MUTHUNAYAKOM RAJAYYAN, AGED 47, CHERUVANDOOR THEKKUMKARA PUTHEN VEEDU, KEEXHAROOR DESOM, DO. VILLAGE. 5. DARMARAJ, S/O. RASSAL NADAR, AGED 34, RABI BHAVAN, ARATTUKUZHI, VELLARADA VILLAGE, DO. DESOM. S.A. NO. 507/1999-B: 6. NJANAMUTHAN NADAR MECHAEL, AGED 48, ARAPPURA PUTHEN VEEDU, MULLILAVUVILA, VADAKKEYATTAM, VADAKKEYATTAM DESOM. 7. KUMARU NADAR CHELLAPPAN NADAR, AGED 61, MULLILAVUVILA, KUZHIOOVU, ROADARIKU PUTHEN VEEDU, VADAKKEYATTAM DESOM. 8. ARJUNAN NADAR, AGED 48, KADAYARA VEEDU, MULLILAVUVILA PURAYIDOM, VELLARADA DESOM, KUNNATHUKAL VILLAGE. 9. CHRISTEENAL, D/O. KAMALAM, AGED 38, VADAKKEYATTAM PUTHEN VEEDU, VELLARADA DESOM, KUNNATHUKAL VILLAGE. 10. KUNJI ESSILI, D/O. KUTTAN, AGED 41, OF DO. DO. 11. MANIYAN, S/O. KUTTAN, AGED 41, OF DO. DO. R1 BY SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE, ADV.SRI.MURALI PURUSHOTHAMAN. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21/06/2010, THE COURT ON 02/07/2010 DELIVERED THE FOLLOWING: prv. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 507 of 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of July, 2010. JUDGMENT The second defendant in O.S. 676 of 1991 before the Munsiff's Court, Neyyattinkara is the appellant. The parties and facts are herein after referred to as they are available before the trial court. 2. The suit was one for partition. It is unnecessary to go into the details for the reason that this appeal can be disposed of on a very short ground. But the essential facts are as follows: Plaint schedule property originally belonged to Gnanammal, who was the mother of the plaintiff and defendants 2 to 5. First defendant is the husband of Gnanammal. Consequent on the death of Gnanammal, according to the plaintiff, the property devolved on her legal heirs. It is also alleged in the plaint that the fifth defendant had left home when he was only 12 years and S.A.507/1999. 2 nothing had been heard about him for the last 13 years. Claiming ¼th share, the suit was laid. Defendants 1, 2, 7, 8, 9, 10 and 11 contested the suit. They pointed out that the plaint description is incorrect and raised various other contentions. 3. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.W.1 and the document marked as Ext.A1 from the side of the plaintiff and the defendants had D.W.1 examined and marked Exts. B1 to B13 marked. Exts. C1 and C1(a) are the commission report and plan. 4. On a consideration of the evidence in the case, the court below passed a preliminary decree, which reads as follows: “1. A partition is allowed in the A schedule property as noted in Ext.C1(a) and C schedule building in favour of the plaintiff. 2. 1/6 of 2/5 -5 ½ cents of property from the plaint A schedule, as noted in Ext.C1(a), is allowed to the plaintiff. S.A.507/1999. 3 3. She is further allotted 1/6 of 2/3 of plaint C schedule building. 4. For effecting a partition in terms of this preliminary decree, the plaintiff is directed to file an application for passing of a final decree within a period of 30 days from the date of this decree. During the final decree proceedings of this suit, the plaintiff shall apply for deputation of a Commission to the plaint schedule property. 5. The Commissioner so deputed will allot a plot in favour of the plaintiff, as far as possible without disturbing the possession and enjoyment of the defendants 1 to 13 in the schedule property. 6. The Commissioner will fix the value of the share allotted to the plaintiff in respect of C schedule building, to be paid by the defendants 1 and 2, as they are in possession and enjoyment of the C schedule building at present. 7. The prayer for putting up of boundary will be considered during the final decree proceedings of this suit. 8. No partition is allotted to the defendants by way of this suit.” S.A.507/1999. 4 5. Aggrieved by the preliminary decree, the second defendant filed A.S. 84 of 1997 before the Sub Court, Neyyattinkara. But there was a delay of 31 months and 15 days in filing the appeal. A petition to condone the delay was filed as I.A. 698 of 1997. The court below chose to dismiss the delay condonation petition and consequently the appeal also. Therefore, the second defendant has come up before this court. 6. Learned counsel appearing for the appellant pointed out that the court below was not justified in dismissing the petition for condonation of delay. The second defendant had urged serious contentions in the suit and that had not been considered by the trial court. It was also pointed out that sufficient reasons had been given for condonation of delay and the court below ought to have accepted the same. The act of the court below in rejecting the delay condonation petition has resulted in miscarriage of justice. S.A.507/1999. 5 7. The court below has considered the claim of the petitioner before the court below and has found that it was not acceptable. According to the petitioner before the court below, she was laid up with rheumatic complaints from 18.2.1995 to 17.6.1997. She claims to have been treated by Dr. P.K.Mohandas. She could recover only by 17.6.1997 and soon thereafter she made preparations to have the appeal filed and the appeal was filed on 14.7.1997. It appears that the medical certificate was also filed in support of her claim. It seems that the court below was not impressed by the medical certificate. Another reason was that counsel for the petitioner before the court below had been appearing in the final decree proceedings. These are the facts which persuaded the court below to reject the petition. 8. The court below could have condoned the delay and disposed of the matter on merits. It is seen that several contentions were taken by the second defendant in the suit. It is true that most of her contentions have been found against. She has given reasons for the delay in filing the S.A.507/1999. 6 appeal. It is difficult to believe that she would have deliberately delayed the filing of the appeal. 9. There is one glaring aspect. The fifth defendant was deleted from the party array on the basis that his whereabouts were not known for the last 13 years. But however in the judgment of the trial court, while decreeing the suit the trial court came to the conclusion that the fifth defendant is still alive. It is difficult to understand how the preliminary decree could have been passed without him on the party array. These aspects had to be considered by the lower appellate court. 10. It could not therefore be said that the appeal before the court below is totally devoid of merit. Whatever that be, it is felt that an opportunity ought to be given to the appellant to agitate the grievances before the lower appellate court. No particular prejudice is caused to the plaintiff in the suit by having the appeal filed by the second defendant considered on merits. S.A.507/1999. 7 In the result, this appeal is allowed, the order dismissing the petition for condonation of delay is set aside and so also the order dismissing the first appeal and the lower appellate court is directed to take back the appeal on file. The delay stands condoned. The parties shall appear before the court below on 27.7.2010 and the lower appellate court is directed to dispose of the appeal on merits as expeditiously as possible, at any rate within a period of three months from the date of appearance of the parties. Office shall send back the records to the court below forthwith. P. BHAVADASAN, JUDGE sb.