IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 RSA.No. 7 of 2005(A) -------------------- AS.48/2002 of SUB COURT, TIRUR OS.198/1999 of J.M.F.C.,PARAPPANANGADI .................... APPELLANT/ APPELLANT/PLAINTIFF: ---------------------------------------- KALYANI, W/O. SUNDARESAN, D/O. AYYAPPANKAVIL KELUKUTTY, THEVALAPPURATH, THENHIPALAM AMSOM DESOM, TIRURANGADI TALUK. BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE RESPONDENTS/ RESPONDENTS/DEFENDANTS IN 0.S: ------------------------------------------------------------------------- 1. S.B. SAJITH, S/O. THEVALAPPURAM SUDNDARESAN, SAJITH BHAVAN, NEEROLPALAM. 2. BROTHER S. SANIL, DAS BHAVAN, KILIKKOLLUR, KOLLAM. ADV. SRI.P.K.SURESH KUMAR FOR R1 SRI.K.P.SUDHEER FOR R1 SRI.V.C.MADHAVANKUTTY FOR R2 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 7 of 2005 ---------------------------------------- Dated this the 16th day of June, 2009 JUDGMENT The Second Appeal is directed against the judgment and decree in A.S. 48/2002 on the file of the Sub court, Tirur which arises from the decree and judgment in O.S. 198/1999 on the file of Munsiff Court, Parappanangadi . The suit was filed for partition and the same was dismissed by the trial court. Against the dismissal of the suit an appeal was filed before the lower appellate court with a petition to condone the delay in filing the appeal. The delay petition was dismissed by the lower appellate court. Consequently the appeal was also dismissed. Hence this Second Appeal. The plaintiff in the suit is the appellant herein. The parties hereinafter referred to as plaintiff and defendants as arrayed in the suit. 2. The plaintiff claims title over the plaint B schedule property as legally wedded wife of late.T. Sundaresan . The defendants denied the plaintiff's claim and contended that the plaintiff is not the legally wedded wife of late T.Sundaresan and that there was no legal marriage between the plaintiff and late T.Sundaresan. Both sides adduced oral evidence in support of their respective contentions before the trial court. The trial court after examining the respective contentions of the parties in detail on the basis of evidence let in by the parties, held that the plaintiff is not the legally wedded wife of late T.Sundaresan and therefore the plaintiff has no R.S.A. No. 7 of 2005 -2- title over the plaint B schedule property and therefore the property is not partiable . 3. The appeal was filed with a petition to condone the delay(I.A. No. 837 of 2002) in filing the appeal. The lower appellate court found that although she received the copies of depositions on 22.3.2002, the appeal was filed only on 12.7.2002. The lower appellate court also held that sufficient causes were not shown for the period of delay from 23.3.2002 to 12.7.2002 in filing the appeal. It is to be noted in this context that the suit was very seriously contested by the plaintiff. It was averred in the affidavit filed in support of the petition to condone the delay that her counsel obtained copy of the judgment and decree on 1.12.2001. According to the plaintiff, as directed by her counsel she also applied for copies of depositions before filing the appeal and the same were delivered to the counsel on 22.3.2002. It was further stated that she was a very poor lady and therefore she could not meet the expenses to file the appeal in time. 4. The said reasons were rejected by the lower appellate court and the delay condonation petition was dismissed. According to the counsel for the plaintiff/ appellant, the plaintiff has got valid contentions in the appeal and if those contentions were not heard on merits, she will be put to severe hardships. In the light of the facts and circumstances stated above and taking R.S.A. No. 7 of 2005 -3- a liberal view I am of the view that the delay petition No. 837/2002 filed in A.S. 48/2002 ought have been allowed and the appeal ought have been decided on merits. Therefore I set aside the order dated 30..7.2003 in I.A. 837/2002 and the consequent decree and judgment passed by the lower appellate court In A.S. 48/2002 The matter is remanded to the lower appellate court for consideration of the appeal on merits. Since the matter is pending for long years, the lower appellate court shall dispose of the appeal within a period of six months from the date of receipt of a copy of the judgment. The Second Appeal is disposed of with the above directions. (HARUN-UL-RASHID, JUDGE) es HARUN-UL-RASHID, J. --------------------------- R.S.A.No. 7 of 2005 ---------------------------- JUDGMENT 16th June, 2009