IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 2ND JUNE 2010 / 12TH JYAISTHA 1932 RSA.No. 236 of 2010() --------------------- AS.20/2006 of PRINCIPAL SUB COURT,ALAPPUZHA OS.307/2004 of PRINCIPAL MUNSIFF'S COURT,ALAPPUZHA .................... APPELLANT/APPELLANT/2ND DEFENDANT: ----------------------------------------------------------------- CHANDRABABU, S/O.(LATE) THANKAPPAN, PARAKKOTTIL HOUSE, ATTUVATHALA MURI, KAINAKARI VILLAGE, ALAPPUZHA. BY ADV. SRI.A.KRISHNAN RESPONDENT(S): RESPONDENT/PLAINTIFF AND 3RD DEFENDANT: ---------------------------------------------------------------------------------------------------- 1. P.T.GOPINATHAN, S/O.(LATE) THANKAPPAN, PARAKKOTTIL HOUSE, ATTUVATHALA MURI, KAINAKARI VILLAGE, ALAPPUZHA. 2. RETNAVALLY, W/O.PURUSHOTHAMAN, PRASANNA BHAVAN, ARYAD PANCHAYATH, AVALOOKKUNNU.P.O, ALAPPUZHA. R1 & R2 BY ADV. SRI.K.V.SADANANDA PRABHU THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.BHAVADASAN, J. ------------------------- R.S.A No.236 of 2010 -------------------------- Dated this the 2nd June, 2010 J U D G M E N T The second defendant in O.S.No.307/04 before the Munsiff Court, Alappuzha is the appellant herein. The parties and facts hereinafter referred to as are available before the trial court. 2. The suit was one for declaration, partition, damages and other ancillary reliefs. The extent of suit property is 4.19 ares comprised in Resurvey No.85/2 of Kainakary village in Kuttanad Taluk. It is unnecessary to go into the details of the pleadings, evidence etc. The suit was partly decreed. Preliminary decree passed was as follows: In the result, suit is decreed partly in the following manner. A preliminary decree is passed for partitioning the plaint schedule property into three equal halves by metes and bounds. The ascertainment of the value and also for allocation of the building etc can be considered at the time of the consideration of the final decree matter. Plaintiff is directed to file a separate commission application along with final decree application within 45 days from the date of this judgment. Considering the nearest relations the parties are directed to suffer their costs respectively." R.S.A No.236 of 2010 2 3. Second Defendant was aggrieved by the preliminary decree. He preferred an appeal before the Sub Court, Alappuzha as A.S. No.20/06. There was also petition as I.A No.376/2006 for condoning the delay of 92 days in filing the appeal . The lower appellate dismissed the delay petition and consequently dismissed the appeal also. The said act of the lower appellate court is challenged by the 2nd appellant before this Court. 4. The act of the lower appellate court is to say the least quite unfortunate. On a very reading of the order, it is seen that delay is caused due to some mistakes on the part of the counsel. The reason stated for the delay was the laches on the part of the counsel for appellant and his Clerk in not filing the appeal in time. He had entrusted the matter and was ensured that necessary steps will be taken within the time. 5. It is not possible to accept the order passed by the lower appellate court. The attempt of the court should be to render justice and not throwing out case based on technicalities. When it is pointed out that the mistake was R.S.A No.236 of 2010 3 that of the counsel the court below ought to have considered the appeal on merits. The lower appellate court has chosen an easy way out. One can only say that it is quite improper. 6. Learned counsel appearing for the appellant produced the decision reported in Ratansingh Vs. Vijaysingh [2001 (1) KLT 327 (SC)] in which it was observed as the Second Appeal was dismissed as a corollary to the dismissal of application for condonation of delay has no effect on the decree passed by the First Appellate Court. 7. In the case on hand the appeal has been dismissed. It may not have any impact on the trial court decree. But that is not same as saying that there is no decree on dismissal of appeal consequently. 8. The facts of the case in the case on hand stands on a different footing. This Court has said that in such case appeal is the proper remedy and in the appeal the order dismissing the petition for delay can be agitated. Recently this Court had occasion to hold that in such cases R.S.A No.236 of 2010 4 a decree has to be drawn up. In the result, this appeal is allowed. The order dismissing the delay petition is set aside and the petition is allowed. Consequently the order dismissing the appeal is also set aside and the lower court is directed to take A.S.20/2006 on file and dispose of the same on merits, after hearing both sides. Parties shall appear before the lower appellate court on 1.7.2010 and the lower appellate court shall take every endeavour to dispose the same within a period of three months from the date of appearance of parties before the court below. Registry will send a copy of this judgment and records to the court concerned forthwith. There will be no order as to costs. P.BHAVADASAN, JUDGE ma R.S.A No.236 of 2010 5 R.S.A No.236 of 2010 6