IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 30TH SEPTEMBER 2010 / 8TH ASWINA 1932 RSA.No. 729 of 2010() --------------------- AS.178/2008 of D.C & SESSIONS COURT,TRIVANDRUM IA.3421/1997 IN OS.999/1990 of I ADDL.SUB COURT,TRIVANDRUM .................... APPELLANTS/APPELLANTS/LR'S OF DECEASED DEFENDANTS 2, 3, 4 & 5: -------------------------------------------------------------------- 1. M.L.AMBIKA KUMARI (LEGAL HEIR OF D2) W/O.LATE P.APPUKUTTAN NAIR, LEKSHMI VILASOM, KERALADITHYAPURAM, POWDIKONAM.P.O, THIRUVANANTHAPURAM. 2. RENJITH (LEGAL HEIR OF D2) S/O.LATE P.APPUKUTTAN NAIR, LEKSHMI VILASOM, KERALADITHYAPURAM, POWDIKONAM.P.O, THIRUVANANTHAPURAM. 3. AMBIKA KUMARI (LEGAL HEIR OF D3) D/O.LATE PANKAJAKSHI AMMA, AGED 44 YEARS, RESIDING AT GANGOTHRI, POWDIKONAM.P.O, THIRUVANANTHAPURAM. 4. JAYA KUMARI (LEGAL HEIR OF D4) D/O.LATE AMBUJAKSHI AMMA, SANKARA VILAS, KARIYAM, POWDIKONAM.P.O, THIRUVANANTHAPURAM. 5. REMADEVI, D/O.LATE AMBUJAKSHI AMMA (LEGAL HEIR OF D4) REMA BHAVAN, POTHENCODE, THIRUVANANTHAPRUAM. 6. K.SEETHAMMA, SEETHA BHAVAN (LEGAL HEIR OF D5) KANAKKODU, VATTAPPARA.P.O, THIRUVANANTHAPURAM. BY ADV. SRI.AYYAPPAN SANKAR SRI.G.SURARSHAN RESPONDENT(S)/RESPONDENT/PLAINTIFF: ----------------------------------- K.RADHAMMA, W/O.SREEKUMARAN NAIR, RESIDING AT RADHA BHAVAN, PALOTTU PANTHAPLAVU MURI, KARAKULAM VILLAGE, THIRUVANANTHAPURAM. ADV. SRI.G.S.REGHUNATH FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- R.S.A.NO.729 OF 2010 (C) ----------------------------------- Dated this the 30th day of September, 2010 J U D G M E N T The above second appeal is preferred impeaching the correctness of the dismissal of an appeal consequent to an order passed by the lower appellate court dismissing an application (I.A.No.3633 of 2008) moved for condoning the delay in preferring such appeal. Though some controversies persist whether a second appeal would lie as against the dismissal of an appeal under the circumstances stated, which, at the most, would amount to rejection of the appeal, as conflicting views are still prevailing, that too, on the basis of the judgments rendered by the Apex Court in Chandi Prasad v. Jagdish Prasad (2004 (3) KLT 654 (SC)) and Shyam Sundar Sarma v. Pannalal Jaiswal (2005 (1) KLT 198 (SC)),, I proceed to examine the merit of the present appeal to consider its admissibility and entertainability. RSA.NO.729/2010 2 2. I heard the learned counsel on both sides. A period of 1034 days delay was sought to be condoned in preferring the appeal against the final decree by some of the defendants in the suit for partition. The 1st appellant in I.A.No.3421 of 1997/the 2nd defendant in the suit was prosecuting the case on behalf of all the applicants was the case projected for condonation of delay stating that that applicant being afflicted with serious ailments was bedridden during the period and, hence, could not take effective steps to prefer the appeal within time. A medical certificate was also tendered to substantiate the cause so pleaded for condonation of delay, to get the time barred appeal admitted and taken on file. Resisting that application, the plaintiff/respondent filed a counter affidavit traversing the cause shown for condonation as false and meritless. The lower appellate court, after having consideration of the materials placed and hearing the counsel, came to the conclusion that the inordinate delay, which was sought to be condoned on the plea set up that the 1st appellant was laid up and he was prosecuting the case on behalf of all the applicants, was unworthy of merit as there were reasons to hold of culpable latches and negligence on RSA.NO.729/2010 3 the part of the appellants in filing the appeal within time. It was also noticed that even an application was filed for getting the certified copy of the judgment and decree of the trial court after considerable delay, and, for which, no explanation whatsoever was offered by the applicants. Holding that, the delay in filing the appeal was not liable to be condoned, the lower appellate court dismissed the application and, consequently, rejected the appeal as well. 3. The learned counsel for the appellants seeking reversal of the order passed on the petition filed to condone delay submitted that when the preliminary decree was passed, there was a consensus between the parties to effect the division in tune with the possession enjoyed by them and that was reflected in the judgment rendered by the lower appellate court in the appeal preferred against the preliminary decree and judgment of the trial court. However, in the final decree proceedings when partition was effected, the direction under the preliminary decree was not given effect to and that has caused serious prejudice to the appellants, submits the counsel. It is further RSA.NO.729/2010 4 submitted that justifiable cause was shown by producing medical certificate to sustain the cause pleaded showing that the 1st appellant was having serious ailments of renal failure and he was not in a position to prosecute the appeal. 4. After going through the order of the learned District Judge dismissing the petition for condoning the delay and having regard to the fact that the suit for partition was instituted as early in 1990 and the delay sought to be condoned is for a period of three years, I am unable to accept the submission made by the learned counsel where culpable negligence is writ large on the face of the record itself as taken notice by the lower appellate court when no application was even filed to get a certified copy of the final decree and judgment in time. From the submissions made by the counsel, it appears, the appellants did not even participate in the final decree proceedings as they have a case that they did not receive any notice in such proceedings. If that was the case, then the remedy lies elsewhere. The judgment rendered by the trial court in that final decree proceedings in I.A.No.3421 of 1997 dated 26.9.2005, in fact, falsify the RSA.NO.729/2010 5 submission that there was no notice as it is seen that all the defendants therein except the 10th defendant were represented by counsel. The plea set up that there was no notice in that final decree proceedings also merits no consideration. I do not find any impropriety in the order passed by the learned District Judge holding that the inordinate delay in preferring the appeal is not condonable. The appeal is devoid of any merit, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp RSA.NO.729/2010 6