IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 17TH FEBRUARY 2009 / 28th MAGHA 1930 WP(C).No. 23368 of 2008(F) PETITIONER : N.GOPI RAO, (GOVINDA RAO), S/O LATE NAMU SUSITHAPUR 44, B.K.R. ROAD, COIMBATHORE CITY, COIMBATORE DISTRICT, TAMIL NADU. (DIED) ADDITIONAL PETITIONERS IMPLEADED: 2. SMT.KRISHNA VENI, W/O.LATE GOPI RAO, PAZHAKACHERY HOUSE, THEKKADY P.O., KUMILY VILLAGE, UDUMPANCHOLA TALUK, IDUKKI DISTRICT. 3. MANIKANDAN, S/O.LATE GOPI RAO (GOVINDA RAO), AGED 25 YEARS, PAZHAKACHERY HOUSE, THEKKADY P.O., KUMILY VILLAGE, UDUMPANCHOLA TALUK, IDUKKI DISTRICT. 4. SMT.K.SINDHU, D/O.LATE GOPI RAO (GOVINDA RAO) AND W/O.T.KESAVA RAO, AGED 31 YEARS, 165-”SRISAI” NAGAR, SAMATHUVAPURAM, CHETTIPALAYAM, COIMBATORE, TAMILNADU. 5. SMT.S.INDU, D/O.LATE GOPI RAO (GOVINDA RAO) AND W/O.J.SURESH MOHAN, AGED 29 YEARS, 3/167, V.K.V.NAGAR, N.G.G.O. COLONY, COIMBATORE - 641 022. 6. SMT.N.REKHA, D/O.LATE GOPI RAO (GOVINDA RAO) AND W/O.J.NAGENDRAN, AGED 27 YEARS, 4/452 A, “OM SHAKTHI ILLAM”, ARUNA NAGAR, K.VADA MADURAI, COIMBATORE - 641 017. LEGAL REPRESENTATIVES OF THE DECEASED PETITIONER ARE IMPLEADED AS ADDITIONAL PETITIONERS 2 TO 6 AS PER ORDER DATED 17/2/2009 IN I.A.NO.14650 OF 2008. BY ADV. SRI.T.V.GEORGE RESPONDENTS: 1. T.RADHA BAI, W/O LATE THUKKU RAM, ANARKKALY HOUSE, THEKKADY P.O., THEKKADY KARA, KUMILY VILLAGE. 2. N.HARISANKARA RAO S/O LATE NAMU 73C, RESIDING AT VELLAR STREET, ARAPALAYAM P.O., MADURI (DIED,LEGAL HEIRS 16 TO 19) 3. N.NARAYANA RAO, S/O NAMU, PAZHAYAKKACHERRY HOUSE, THEKKADY P.O., KUMILY VILLAGE. (DIED LRS IMPLEADED) 4. N.KRISHNA RAO, S/O LATE NAMU, DO.......DO..(DIED LRS IMPLEADED) 5. N.RUGMINI BAI, W/O KRISHNA RAO, 63, RESIDING AT SURYA COMPOND, VELLAR STREET, ARAPALAYAM, MADURA (DIED, LEGAL HEIRS 8 TO 12). 6. K.RAJAMMA BHAI, W/O K. BALANADHA RAO, KATTIYALA NADAR COMPOUND,OPPOSITE R.C. CHURCH, PAZHAYANTHAM P.O., MADHURA. 7. T.PRASAD RAO, S/O THUKKURAM RAO, DEFENCE SERVICE, ANARKKALI HOUSE, THEKKADY KARA, KUMILY VILLAGE. 8. K.MURALY, S/O K.RUGMINI BHAI -63, SURYA KANNU COMPOUND, VELLAR STREET, ARAPALAYAN P.O., MADURAI. 9. K.AMARNADH, DO.....DO..... 10. K.JANARDHANAN, DO.....DO.... 11. K.RAJESH, DO......DO..... 12. HEMALATHA, DO......DO..... 13. CHANDRA, W/O LATE AMARNATHU DO....DO... 14. MALTER SATHEESH, S/O AMARNATHU DO...DO. 15. MALTER VINOD, S/O LATE AMARNATHU, -DO- -DO- 16. JEEVA BHAI, W/O LATE N. HARISANKAR RAO, 85 PILLAIYAR STREET, AMARAPALAYAM, MADURAI -10. 17. RAMESH, S/O LATE HARISANKAR RAO DO..DO. 18. SURESH, S/O LATE HARISANKARA RAO, DO..... DO..... 19. ASOK, S/O LATE HARISANKARA RAO, DO..... DO.... ADDITIONAL RESPONDENTS 20 TO 25 IMPLEADED: 20. GIRIJA BAI, W/O.LATE NARAYANA RAO, PAZHAKACHERY HOUSE, THEKKADY, KUMILY VILLAGE, UDUMPANCHOLA TALUK, IDUKKI DISTRICT. 21. SMT.BINDU, D/O.LATE NARAYANA RAO, AND W/O.PRADEEP, -DO- -DO- 22. GEETHA, D/O.LATE NARAYANA RAO AND W/O.MOHAN, -DO- -DO- 23. VAITHEESH RAO, S/O.LATE NARAYANA RAO, PAZHAKACHERY HOUSE, THEKKADY P.O. KUMILY VILLAGE, UDUMPANCHOLA TALUK, IDUKKI. 24. SMT. KASTHURI, D/O.LATE KRISHNA RAO AND W/O.APPA RAO, PAZHAKACHERY HOUSE, THEKKADY P.O., KUMILY VILLAGE. 25. SMT.RANI, D/O.LATE KRISHNA RAO AND W/O.MOHAN, PAZHAKACHERY HOUSE, THEKKADY P.O., KUMILY VILLAGE. LEGAL REPRESENTATIVES OF DECEASED THIRD AND FOURTH RESPONDENTS ARE IMPLEADED AS ADDITIONAL RESPONDENTS 20 TO 25 AS PER ORDER DATED 17/2/2009IN I.A.NO.14651 OF 2008. R1 BY ADV. SRI.T.I.ABDUL SALAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF APPLICATION ALONG WITH AFFIDAVIT DATED 30.3.2006 IN I.A.NO.509 OF 2006 IN O.S.NO.41/93 IN F.D.A.1123/96 BEFORE THE SUB COURT, KATTAPPANA. EXT.P2 TRUE COPY OF DISMISSAL ORDER DATED 31/1/2007 IN I.A.NO.509/06 IN F.D.A.1123/96 IN O.S.41/93 PASSED BY THE SUB COURT, KATTAPPANA. EXT.P3 TRUE COPY OF MEMORANDUM OF CIVIL MISCELLANEOUS APPEAL NO.24/07 BEFORE THE DISTRICT COURT, THODUPUZHA. EXT.P4 TRUE COPY OF DELAY CONDONATION PETITION ALONG WITH CMA.24/07 BEFORE THE DISTRICT COURT, THODUPUZHA. EXT.P5 TRUE COPY OF DISMISSAL ORDER DATED 9/1/2008 IN C.M.A. NO.24/07 PASSED BY THE DISTRICT COURT, THODUPUZHA. EXT.P6 TRUE COPY OF DISMISSAL ORDER DATED 9.1.2008 IN DELAY CONDONATION PETITION PASSED BY THE DISTRICT JUDGE, THODUPUZHA. EXT.P7 TRUE COPY OF DISMISSAL ORDER DATED 30.6.2008 IN I.A.NO. 435/08 IN CMA.24/07 PASSED BY THE DISTRICT COURT, THODUPUZHA. EXT.P8 TRUE COPY OF REVIEW PETITION FILED BY THE PETITIONER BEFORE THE DISTRICT COURT, THODUPUZHA. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 23368 OF 2008 F ------------------------------------------------------ Dated this the 17th February, 2009 JUDGMENT The petitioner is the third defendant in O.S.No.41 of 1993, on the file of the Court of the Subordinate Judge of Kattappana. The suit was originally filed as O.S.No.74 of 1987, on the file of the Court of the Subordinate Judge of Thodupuzha and it was transferred to the Sub Court, Kattappana, where it was renumbered as O.S.No.41 of 1993. The suit is for partition. A preliminary decree was passed. On 28.2.2006, final decree was also passed. The writ petitioner was set exparte in the final decree proceedings. 2. I.A.No.509 of 2006 was filed by the petitioner to set aside the final decree which was passed exparte. The trial court dismissed that application as per Ext.P2 order dated 31.1.2007. Challenging that order, the petitioner filed C.M.A.No.24 of 2007, on the file of the Court of the District Judge of Thodupuzha. There was delay in filing the Appeal. An application for condonation of the delay of 21 days in filing the appeal was filed as I.A.No.183 of 2007. On 9.1.2008, I.A.No.183 of 2007 in C.M.A.No.24 of 2007 was dismissed as not pressed. On the same date, the learned District Judge dismissed the Civil Miscellaneous Appeal as W.P.(C) NO. 23368 OF 2008 F :: 2 :: well on the ground that the application for condonation of delay was dismissed. 3. It is stated that the C.M.Appeal was not maintainable before the District Court. The valuation of the suit was Rupees One lakh. The suit being of the year 1987, as per Section 13 of the Kerala Civil Courts Act then in force, the C.M.Appeal against the order in I.A.No.509 of 2006 was to be filed before the High Court. The petitioner contends that by mistake, the C.M.Appeal was filed before the District Court. It is stated that realising this mistake, the application for condonation of delay in filing the C.M.Appeal before the District Court was not pressed under the honest belief that by getting C.M.A.No.24 of 2007 dismissed as not pressed, the petitioner could move the High Court by filing an appeal against the order in I.A.No.509 of 2006. The FAO filed before the High Court was not numbered on the ground that the C.M.Appeal filed by the appellant in the FAO was dismissed by the District Court. Later, the writ petitioner filed I.A.No.435 of 2008 in C.M.A.No.24 of 2007 before the District Court to review the order dated 9.1.2008. The learned District Judge dismissed that application by Ext.P7 order dated 30.6.2008, which is under challenge in this Writ Petition. Learned District Judge held that the application for condonation of delay was dismissed as not pressed and, therefore, the prayer for review cannot be entertained. W.P.(C) NO. 23368 OF 2008 F :: 3 :: 4. There is no dispute regarding the valuation of the suit. It is also not in dispute that the C.M.Appeal against the order in I.A.No.509 of 2006 should have been filed before the High Court. Instead, the C.M.Appeal was filed before the District Court. Had the District Court properly perused the matter, it could have seen that the appeal was not maintainable before that Court and the appeal could have been returned for presentation before the proper court. A mistake was committed by the writ petitioner in filing the appeal before the District Court. The District Court also committed a mistake in entertaining the appeal, while the District Court had no jurisdiction to entertain the appeal. Now the question to be considered is whether the case put forward by the writ petitioner that the application for condonation of delay in filing the C.M.Appeal before the District Court was not pressed, as stated by him is true. After the dismissal of the C.M.Appeal before the District Court, the petitioner had filed FAO before the High Court. That by itself would show that the petitioner was under the bona fide impression that dismissal of the application for condonation of delay in the C.M.Appeal filed before the District Court and consequent dismissal of the C.M.Appeal as not pressed would enable him to file FAO before the High Court. That was a mistake on the part of the petitioner. It should not result in a serious consequence like shutting out the remedy available to the petitioner. A W.P.(C) NO. 23368 OF 2008 F :: 4 :: mistake committed by the petitioner should not debar him from exercising his right of appeal. He had a right to file appeal. The appeal should have been filed before the High Court. Instead, he filed the appeal before the District Court. That appeal was not maintainable. Even if it was not pressed and even if that was dismissed as not pressed, it should not result in shutting out the remedy of the petitioner to file a proper appeal before the High Court. 5. For the aforesaid reasons, I am of the view that the court below was not justified in dismissing the Review Petition. Accordingly, Ext.P7 order dated 30.6.2008 is set aside, I.A.No.435 of 2008 in C.M.A.No.24 of 2007 is allowed. The order dated 9.1.2008 in I.A.No.183 of 2007 is set aside. The order dated 9.1.2008 in C.M.A.No.24 of 2007 is set aside. C.M.A.No.24 of 2007, on the file of the District Court, Thodupuzha is not maintainable before that court. The District Court shall return the Memorandum of C.M.Appeal for presentation before the appropriate court. The District Court shall return C.M.A.No.24 of 2007 within a period of two weeks from the date of receipt of a copy of this judgment. Learned counsel for the respondents submitted that all these exercises were made deliberately by the petitioner to protract the litigation and that the same thing would happen hereinafter also. The counsel for W.P.(C) NO. 23368 OF 2008 F :: 5 :: the respondent submitted that the petitioner should not be allowed to delay the filing of a proper appeal before the High Court after return of C.M.A.No.24 of 2007 by the District Court. It is also submitted by the counsel that if a copy of the appeal to be filed by the petitioner before the High Court is served on the counsel for the respondents, it would save much time and avoid the delay in the disposal of the matter. In view of the submissions made by the learned counsel for the respondents, the writ petitioner is directed to file FAO before the High Court within two weeks from the date of return of C.M.A.No.24 of 2007. The petitioner shall also serve notice of FAO to the counsel appearing for the respondents herein whenever such FAO is filed. (K.T.SANKARAN) Judge ahz/