IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 12TH OCTOBER 2009 / 20TH ASWINA 1931 RSA.No. 482 of 2008() --------------------- AS.194/1999 of I ADDL. DISTRICT COURT, TRIVANDRUM OS.2199/1991 of II ADDL.M.C.,TRIVANDRUM .................... APPELLANT/1st APPELLANT IN A.S.No.194/1999/ADDL. 4th DEFENDANT IN O.S.No.2199/1991: -------------------------------------------------- B.SREEKUMARAN NAIR, S/O BHASKARAN NAIR, AGED 58 YEARS, KUNCHUVEEDU, UPANIYOOOR DESOM, THIRUVANANTHAPURAM BY ADV. SRI.P.GOPAKUMARAN NAIR SRI.C.S.DIAS SMT.R.BEENA RESPONDENTS/RESPONDENTS 1 TO 5 AND 2nd APPELLANT IN A.S.No. 194/1999/PLAINTIFF AND DEFENDANTS 1, 2, 3, 6 AND 5 IN O.S.No.2199/1991: ------------------------------------------------------------ 1. SULOCHANA, D/O RAJAMMA, KULANTHUMKARA,'V UPANIYOOR DESOM, NEMON VILLAGE, THIRUVANANTHAPURAM 2. RAVI KUMAR, S/O KUNJAN PANICKER, MELAYKULATHUMKARA VEEDU, UPANIYOOR DESOM, NEMON VILLAGE 3. RAGHAVAN, S/O RAMACHADNRA PANICKER RAMANILAYAM, KESAVAN NAIR,LANE, POOJAPPURA, THIRUVANANTHAPURAM. 4. RADHAKRISHNAN, S/O RAMACHANDRA PANICKER RAMANILAYAM, KESAVAN NAIR LANE, POOJAPPURA, THIRUVANANTHAPURAM 5. SANJIVKUMAR, S/O KRISHNA PILLAI, KARUMOM, THIRUVANANTHAPURAM. 6. PADMAKUMARI, W/O SREEKUMARAN, KUNCHUVEEDU, UPANIYOOR DESOM, NEMON, THIRUVANANTHAPURAM NOW RESIDING AT " KAUSTHUBHA", KRISHNAPURAM GRAMAM, NEYYATTINKARA P.O., THIRUVANANTHAPURAM DISTRICT. ADV. SRI.M.R.ANANDAKUTTAN FOR R2 SMT.M.HEMALATHA FOR R2 SRI.R.S.MADHU FOR R2 SRI.MAHESH ANANDAKUTTAN FOR R2 SRI.V.SURESH FOR R5 SRI.G.SUDHEER FOR R5 SRI.R.S.KALKURA FOR R1 SRI.M.S.KALESH FOR R1 SRI.HARISH GOPINATH FOR R1 SRI.V.VINAY MENON FOR R1 SRI.M.AJAY (IRUMPANAM) FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- C.M.Appl.No.1192 of 2008 in R.S.A.No.482 of 2008 --------------------------------------- Dated this 12th day of October 2009 ORDER This application is filed by appellant/defendant No.4 to condone the delay of 1653 days in filing the second appeal. Application is opposed by respondent Nos.1 and 2. 2. The second appeal is in challenge of judgment and decree of the first appellate court in A.S.No.194 of 1999 confirming judgment and decree of trial court in O.S.No.2199 of 1991. The suit, after amendment of plaint is one for partition, mandatory injunction and other reliefs. Plaintiff claimed that plaint A schedule described as 7.255 cents belonged to her as per sale deed No.261 of 1983. There was a partition as per document No.3329 of 1961 in which the C schedule therein was allotted to the share of Ramachandra Panicker whose legal representatives are defendant Nos.2 and 3, his wife and mother, Janaki Kamalakshy each of whom got 1/4th share in the property allotted to the said Ramachandra Panicker. Plaintiff claimed to have purchased plaint A schedule from the said Janaki Kamalakshy. Plaintiff claimed that on resurvey of the properties, the extent to which she is entitled was found to be 8.75cents and claimed that defendants attempted to trespass into the property and demolished compound wall. Hence the suit. Defendant No.1 contended that plaintiff has not acquired right over the suit property as per sale deed No.261 of 1983, her vendor was not physically or mentally competent to execute that deed and that the document is forged. He claimed that 29 cents was allotted to Ramachandra Panicker as C schedule of item No.1 in the partition deed. 19 cents was allotted to defendant No.1 as F schedule on its west. Defendant No.1 purchased 7 cents from the 29 cents allotted to Ramachandra Panicker from defendant Nos. 2 and 3 as per sale deed No.2879 of 1990 and thus he has title and possession over 26 cents. He denied that he attempted to trespass into any portion of the property scheduled in the plaint. Defendant Nos.4 to 5 are subsequent assignees of defendant Nos.2 and 3, sons of late Ramachandra Panicker. Trial court found that Ext.A1 was executed by Janaki Kamalakshy (mother of Ramachandra Panicker) in favour of plaintiff, but it was not with respect to any specific portion of the C schedule property in the partition deed allotted to the share of Ramachandra Panicker and hence claim of plaintiff that she is in possession of any specific portion of the property as described in plaint A schedule cannot be accepted. Janaki Kamalakshy had only 1/4th right in the property allotted to Ramachandra Panicker as C schedule of the partition deed which right alone she could assign to the plaintiff. It was also found that defendant No.1 got 7cents by assignment from defendant Nos.2 and 3 and the rest of the property even if there is any excess in the extent than what is allotted to Ramachandra Panicker as C schedule of partition deed, that should go to the legal representatives of Ramachandra Panicker. On that finding preliminary decree for partition was passed so that plaintiff should get 7.250 cents which is the 1/4th right of Janaki Kamalakshy as a legal representative of Ramachandra Panicker. Defendant No.1 should get 7 cents from the share allotted to Ramachandra Panicker in the partition deed and the rest of the C schedule in the partition deed should go to defendant Nos.2 and 3, legal representatives of Ramachandra Panicker and those claiming title under them. That judgment and preliminary decree were confirmed by the first appellate court as per judgment and decree dated 11-04-2003. The second appeal is filed on 14-03-2008 with the application above stated requesting to condone the delay of 1653 days. In the affidavit in support of the application it is stated that during the relevant time appellant/defendant No.4, assignee from defendant Nos.2 and 3 was under medical advise to take complete rest and for about five years he was practically confined to his house. Further contention is that appellant/defendant No.4 was not informed about the disposal of the appeal by his counsel on time and hence he could not make any arrangement to get copy of judgment and decree under challenge. Hence the delay. Respondent Nos.1 and 2 opposed the application contending that grounds urged are not true or sufficient, appellant/defendant No.4 is a lawyer practicing in the courts at Trivandrum where the trial and appeal cases were conducted and hence his contention that he was unaware of the disposal of appeal does not sound good. 2. It is true that in the matter of condonation of delay courts are required to take a liberal approach to advance the cause of justice but considering the facts and circumstances of the case. It has also be borne in mind that law of limitation is an equitable statute and that it is intended to give finality for certain claims and actions. An interpretation which would jettison the law of limitation cannot be made. The suit in this case was filed in the year 1991 and the first appeal was preferred in the year 1999 which was disposed of on 11-04- 2003. It is not disputed before me that appellant/defendant No.4 is a lawyer practicing in the courts at Trivandrum. It is difficult to think even if it is assumed that he was taking bed rest on medical advise for which itself there is no reliable evidence, that he was unaware of the disposal of appeal on time in a situation where the communication system in this country has so developed I am unable to think that even keeping at home appellant/defendant No.4 could not have through the developed communication system ascertained the stage and fate of the appeal on time. I am unable to accept the reason stated by appellant/defendant No.4 as falling within the mischief of “sufficient cause” occurring under section 5 of the Limitation Act so that this second appeal should be admitted for consideration after almost five years of the disposal of first appeal. Having gone through the records and application to condone delay I am not satisfied that the delay is properly and sufficiently explained. The application fails and it is dismissed without any order as to cost. THOMAS P JOSEPH, JUDGE Sbna/ THOMAS P JOSEPH, J ---------------------------------------- R.S.A.No.482 of 2008 --------------------------------------- Dated this 12th day of October 2009 JUDGMENT C.M.Appl.No.1192 of 2008 to condone the delay in filing the RSA has been dismissed. Hence the second appeal is dismissed as barred by limitation without any order as to cost. THOMAS P JOSEPH, JUDGE Sbna/