IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 28TH JULY 2011 / 6TH SRAVANA 1933 SA.No. 341 of 2000(G) --------------------- AS.25/1999 of ADDL.DISTRICT COURT, THRISSUR OS.941/1987 of PRL.MUNSIFF COURT,THRISSUR .................... APPELLANT(S)/APPELLANTS/DEFENDANTS 2, 4 & 5: ------------------------------------------------------------------------ 1. JANU, W/O. GANGADHARAN, RESIDING AT KOOTTALA HOUSE, MANGATTUKARA DESOM, PADIYAM VILLAGE, THRISSUR TALUK. 2. SUBRU, S/O. DO. IN DO. DO. 3. SHEEBA, D/O. IN DO. DO. BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.P.B.KRISHNAN RESPONDENT(S)/RESPONDENTS/PLAINTIFF: ------------------------------------------------------------- 1. PUSHKARAN, S/O. LATE KUNJAKKAN, RESIDING AT KOOTTALA HOUSE, ANTHIKKAD DESOM AND VILLAGE, THRISSUR. 2. RAJU, S/O. LATE GANGADHARAN, RESIDING AT KOOTTALA HOUSE, MANGATTUKARA DESOM, PADIYAM VILLAGE, THRISSUR TALUK. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 341 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of July, 2011. JUDGMENT Defendants 2, 4 and 5 are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiff claimed that the plaint schedule property was purchased by him as per Ext.A1 document dated 11.8.1970. It is alleged that when the plaintiff was in Gulf countries in search of employment, the first defendant put up a shed in the property without his consent and knowledge. When he returned, he demanded vacant possession of the property, which was not heeded to by the first defendant. The plaintiff caused to issue a notice, which caused a reply notice containing false statements. It is contended that the defendants had no manner of right over the suit property. Therefore, they are bound to surrender the property and hence the suit. S.A.341/2000. 2 3. Defendants 1 to 4 resisted the suit on various grounds. According to them, when their father was alive, the place available in the tarwad became insufficient and a decision was taken at the instance of the members of the tarwad including the plaintiff. The plaintiff agreed to lease the plaint schedule property to the first defendant, instead the first defendant had to relinquish his rights over the tarwad property in favour of the plaintiff. As per the understanding, the first defendant is residing in the hut constructed in the plaint schedule property and doing business since 1970. They also claimed the status of kudikidappukars. 4. On the above pleadings, issues were raised by the trial court. Since there was a plea of kudikidappu, the matter was referred to the Land Tribunal, that was found against the defendants. Thereafter, it is pointed out, the suit was included in the list in September, 1997 and the suit was decreed. S.A.341/2000. 3 5. The defendants carried the matter in appeal as A.S.25 of 1999. They also filed I.A.96 of 1999 to condone the delay of 329 days in filing the appeal. The lower appellate court dismissed the delay condonation petition and consequently the appeal. Hence the Second Appeal. 6. Notice is seen issued on the following questions of law: “A. Whether on the facts and in the circumstances of the case, the lower appellate court is correct in its interpretation of the scope of application of Section 5 of the Limitation Act? B. Is the finding of the lower appellate court that the decision of the trial court could be challenged in proceedings under Order 9 Rule 13 of the Code of Civil Procedure sustainable in law? C. Has not the lower appellate court committed an error of law in limiting the scope of an appeal under Section 96 of the Code of Civil Procedure by holding that certain grounds could not be urged in support of the appeal? D. Is not the delay occasioned in the filing of A.S. 25 of 1999 properly explained and has not S.A.341/2000. 4 sufficient cause been made out as required by Section 5 of the Limitation Act? 7. Learned counsel appearing for the appellants pointed out that the lower appellate court was not justified in coming to the conclusion that the disposal of the trial court was only under Order 17 Rule 2 of the Code of Civil Procedure and therefore there are other remedies available to the appellants. Learned counsel also pointed out that after the return of the finding by the Land Tribunal to the Munsiff's court, the Munsiff's court had posted the case for trial. The defendants moved an application for adjournment of the trial, which was declined and the evidence of the plaintiff was taken and the judgment was rendered. Learned counsel pointed out that it could not treated as a mode of disposal under Order 17 Rule 2 and the observation of the lower appellate court regarding Order 17 Rule 2 is not correct. It is also pointed out that there was no justification in declining to grant the relief. It is pointed out that at any S.A.341/2000. 5 rate no harm would have been caused to the respondents in the appeal for having the matter heard on merits. 8. There seems to be considerable force in the submission made by the learned counsel for the appellants. True, there was a delay of 329 days in filing the appeal. On going through the records it is seen that sufficient cause has been shown by the appellants for condonation of delay. It is stated that soon after the pronouncement judgment by the trial court, the first defendant died, defendants 3 and 4 were away from home and they were in search of job and the fifth defendant was staying with her husband. The second defendant was not in good health and she had to take treatment quite often. In that circumstance, there was some delay in filing the appeal. 9. It seems that the lower appellate court focused the attention to the conduct of the parties and came to the conclusion that there was no bonafides in the claim made by the appellants that the delay in filing the appeal was due to reasons beyond their control. S.A.341/2000. 6 10. Whatever that be, since the reasons given by the appellants for the delay could not be said to be false, there is no justification in declining to condone the delay and having the matter heard on merits. It needs to be noticed that when the appellants have taken recourse of filing an appeal even assuming that they could have resort to Order 9 Rule 13 of the Code earlier assuming the disposal is under Order 17 Rule 2 of the Code. They have chosen the remedy by way of an appeal. By declining to condone the delay, a valuable right of the appellants has been affected and they are also now precluded from taking recourse under Order 9 Rule 13 of the Code. In the result, this appeal is allowed, the impugned judgment and decree are set aside and the matter is remanded to the lower appellate court with a direction to take back the appeal on file and dispose of it in accordance with law after hearing both sides. The parties shall appear before the lower appellate court on 24.8.2011. The lower appellate court shall make every endeavour to dispose of S.A.341/2000. 7 the matter as expeditiously as possible at any rate within a period of three months from the date of appearance of the parties. P. BHAVADASAN, JUDGE sb.