Ammini v. Subramanian (dead) LRs impleaded and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 30[TH] DAY OF NOVEMBER 2022 / 9TH** ## **AGRAHAYANA, 1944** ## **RSA NO. 584 OF 2019** **AGAINST THE JUDGMENT AND DECREE IN I.A.NO.934/2016 IN A.S. NO.101/2016 OF ADDITIONAL DISTRICT COURT, NORTH** ## **PARAVUR** **AGAINST THE JUDGMENT AND DECREE IN O.S.NO.430/2011 OF MUNSIFF COURT, ALUVA** **APPELLANT IN RSA/PETITIONER IN I.A & APPELLANT IN AS/PLAINTIFF IN SUIT:** **AMMINI AGED 63 YEARS, W/O.RAJAPPAN, MULAGAMPARAMBIL HOUSE, ALUVA KARA, ALUVA EAST VILLAGE, ALUVA TALUK, PIN-683 561. BY ADVS. P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE** ## **RESPONDENTS IN RSA/RESPONDENT IN I.A. & RESPONDENT IN** ## **AS/DEFENDANT:** |**1**|**SUBRAMANIAN,(DIED) LRS IMPLEADED**| |---|---| ||**AGED 65 YEARS**| ||**S/O.MADHAVAN, VAZHAYIL ALIAS MOOJELY HOUSE,**| ||**EAST TO RAILWAY LINE, PARAKULAM ROAD, ANGAMALY**| ||**KARA, ANGAMALY VILLAGE, PIN-683 572.**| |**2**|**ADDL.SAROJINI,**| ||**W/O.SUBRAMANIAN, AGED 66, VAZHAYIL ALIAS**| ||**MOOJELY HOUSE,**| ||**EAST TO RAILWAY LINE, PARAKULAM ROAD, ANGAMALY**| ||**KARA,**| ||**ANGAMALY VILLAGE, PIN-683 572.**| |**3**|**ADDL.SHIJA,**| ||**D/O.SUBRAMANIAN AND W/O.DILEEP, AGED 42, PARELI**| ||**HOUSE, T.B.JUNCTION,**| ||**ANGAMALY,, PIN-683 572.**| |**4**|**ADDL.SHINI,**| ||**D/O.SUBRAMANIAN AND W/O.GOPI, AGED 40, MOOJELI**| ||**HOUSE,**| RSA NO.584 OF 2019 2 **AREECKAL JUNCTION, KARUKUTTY P.O.,ANGAMALY. 5 ADDL.SHIMI, D/O.SUBRAMANIAN AND W/O.SALIL, AGED 37, MOONJELI HOUSE, GRAND BAKERY, OPP.TO K.S.R.T.C.STAND, ANGAMALY, PIN-683 572. (LEGAL HEIRS OF THE DECEASED FIRST RESPONDENT ARE IMPLEADED AS THE ADDL.RESPONDENTS 2 TO 5 AS PER ORDER DATED 01.11.2022 IN IA.2/2019.) BY ADVS. PIUS C.MUNDADAN -R2 TO R5 SMT.ANJU - R2 TO R5 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15.11.2022, THE COURT ON 30.11.2022 DELIVERED THE FOLLOWING:** RSA NO.584 OF 2019 3 ## **JUDGMENT** Dated this the 30[th] day of November, 2022 This appeal has been filed against the judgment and decree in A.S. No.101/2016 on the file of Additional District Court, North Paravoor, which in turn arise out of judgment and decree in O.S. No.430/2011 on the file of Munsiff’s Court, Aluva. 2. The suit is one for partition. The appellant is the plaintiff. The plaint schedule property originally belonged to the father of the plaintiff. Defendant filed written statement contending that the plaintiff already received her due share in the family property at the time of her marriage and in 1999 she executed receipt of balance payment. So the claim of the plaintiff is hit by the principle of estoppel and ultimately the suit was dismissed with costs. Against which appeal was filed with with I.A. No.934/2016 to condone the delay of 564 days in filing the appeal. The learned Additional District Judge on evaluating the facts and circumstances, found that there is no sufficient reason to condone the delay and dismissed the RSA NO.584 OF 2019 4 petition to condone the delay and consequently the appeal was dismissed. 3. Aggrieved by the same appellant approaches this Court in second appeal. Sole respondent died and his legal heirs were impleaded as additional respondents 2 to 5. Both sides were heard. Arguments notes also field on behalf of respondents. 4. The 3[rd] respondent filed a detailed counter affidavit refuting the allegations of the appellant. According to the learned counsel for the respondent the same lawyer appeared for the appellant in the trial court as well as the 1[st] Appellate Court. It is most unlikely that the advocate will omit to file the appeal in time. There is no satisfactory explanation for condoning the delay of more than 1½ years. The lapse attributed against the lawyer itself is a fraudulent act adopted by the appellant. It is also contended that the suit itself is filed by the appellant suppressing Ext.B1 receipt issued for evidencing the acknowledgment by her of the share of the family property. The appellant approached this Court with the unclean hands pretending ignorance about Ext.B2 to B9. 5. It is further contended that there is no substantial RSA NO.584 OF 2019 5 question of law arises for consideration for entertaining the second appeal. 6. According to the learned counsel for the appellant, the appeal has been dismissed consequent to the dismissal of petition to condone the delay for which the appellant was not at all responsible. She had entrusted the file in time with the advocate and advocate concerned due to shifting of file from the office removed the particular file along with the old files to his residence and consequently omitted to file the appeal in time. Only when the appellant contacted him, he came to know about the non filing of appeal in time and he has filed an affidavit to that effect also. According to the learned counsel, the dismissal of appeal on the ground of delay is illegal and is to be set aside. 7. **Govinda Raju v. Mariamman 2005 SCC 500, Thiagarajan and Others v. Venugopala Swami B Koil and ) SCC 5762, Lissamma Antony and Another v. Karthyayani and Another 11 SCC 782, Gurnam Singh (dead) by Lrs. and Others v. Geena Sings (dead) by legal representatives 2019 7 SCC 641** were relied on by the learned counsel for the 3[rd] respondent to substantiate what RSA NO.584 OF 2019 6 actually is a substantial question of law. 8. In **Govinda Raju** it has been held that Section 100 provides that second appeal would lie to the High Court from a decree passed in appeal in any court subordinate to the High Court, if the High court is satisfied that the case involved a substantial question of law. It is also held that existences of substantial question of law is a sine qua non for exercise of jurisdiction under Section of 100 of Code of Civil Procedure, 1908. 9. In **Thiagarajan and Others** also it has been held that jurisdiction of High Court is now confined to entertain only such appeals which involved substantial question of law specifically set out in the memorandum of appeal and formulated by High Court. ## 10. In **Lissamma Antony and Another** also it has been reiterated that second appeal under Section 100 cannot be admitted unless there is a substantial question of law involved therein. 11. In **Gurnam Singh (dead) by Lrs. and Others** it has been held that framing of substantial question of law is a sine qua non for exercise of jurisdiction under Section 100. In RSA NO.584 OF 2019 7 para No.13.1 it has been held that jurisdiction of the High Court to entertain second appeal under Section 100 C.P.C. after 1976 amendment is confined only when second appeal involves a substantial question of law. 12. According to the learned counsel for the appellant, the dismissal of 1[st] appeal consequent to dismissal of petition to condone the delay for justifiable reasons stated by the 1[st] Appellate Court will not give rise to any substantial question of law for entertaining the second appeal. 13. The next contention of the learned counsel is with regard to the sufficiency of the reason stated for condoning the delay. The reason stated admittedly is that the file was entrusted in time with the advocate to file appeal but the file was shifted to the house of the advocate and the advocate omitted to file the appeal in time. But admittedly by her she contacted the advocate only in last week of October 2016, though appeal ought to have been filed on or before 30.04.2015. It is also her contention that an affidavit has been filed by the advocate narrating the facts. 14. In this context the learned counsel for respondents bring my attention to **Salil Dutta v. T.M. and M.C. Private** RSA NO.584 OF 2019 8 **Ltd. [1993 2 SCC 185],** wherein it has been held that an advocate is an agent of the party and his acts and statements made within the limits of authority given to him are the acts and statements of the party who engage him. It is also held that though in certain situations the court may in the interest of justice set aside the dismissal order or an ex-parte decree not withstanding the negligence or misdemeanor of the advocate, where it finds that the client was innocent litigant, there is no such absolute rule that a party can disown its advocate at any time and seeks relief. 15. In the present case, it is true that the advocate filed an affidavit stating what transpired between him and the petitioner. But the learned counsel for the respondent in this context relies on **Smt.Sudha Devi v. M.P.Narayanan and Others [AIR 1988 SC 1381]** wherein while dealing with Section 3 of the Indian Evidence Act and evidentiary value of affidavit it has been held that affidavits are not included in the definition of evidence in Section 3 of the Evidence Act and can be used as evidence only if for sufficient reason court passed an order under Order XIX Rule 1 or 2 of the Code of Civil Procedure. In the present case, affidavit has been filed before RSA NO.584 OF 2019 9 the 1[st] Appellate Court not in compliance of Order X1X Rule 1 or 2 So the affidavit filed by the advocate before the 1[st] Appellate Court is not actually proved. So also it can only be taken as an additional evidence and that has to be accepted by the 1[st] Appellate Court as per Order 41 Rule 27. In this context, the learned counsel for the respondent relies on **Navabharath Kuries & Trading Co. v. C.E.Job & Ors. [2007 1 KLJ 22]** wherein while dealing with Order 41 Rule 27 it has been held that production of additional evidence at appellate stage without separate petition stating sufficient cause, would not satisfy the requirement of the provision. 16. The learned counsel further vehemently contend that the irresponsible attitude of the appellant is explicit from the averments in the affidavit since she has alleged that the file was entrusted with the advocate for filing appeal. The suit was dismissed on 28.02.2015 and the appellant/plaintiff obtained copy of the judgment on 06.04.2015. But appeal was filed only on 25.10.2016. The advocate who appeared for the appellant filed affidavit stating that delay in filing the appeal was occurred due to shifting of file from the office to his house. Though the appellant entrusted the file with the advocate in RSA NO.584 OF 2019 10 the year 2015 itself, she enquired about the case only in the year 2016. So there is no sufficient cause shown by the appellant for not enquiring about the status of the appeal for such a long period. The 1[st] Appellate Court found that the appellant contacted the advocate only in the last week of October 2016, though the appeal ought to have been filed at least on the reopening day of the year 2015. So relying on **Oriental Aroma Chemical Industries Ltd. v. Gujarath Industrial Development Corporation and another 2005 SCC 459 and Lanka Venkateswarlu v. State of Andhra Pradesh and others 2011 4 SCC 363,** it has been found that the delay has to be explained properly. It also found that delay and latches on the part of the advocate is also not a sufficient reason to condone the delay. 17. The learned Counsel placed reliance on **K.Subbarayudu & Others v. Special Deputy Collector (Land Acquisition) [2017 12 SCC 840]** where in while dealing with application for condonation of delay under Order 41 Rule 3A of the Code of Civil Procedure , it has been held that when the court concerned has exercised its discretion either condoning or declining to condone delay, normally RSA NO.584 OF 2019 11 superior court will not interfere in exercise of such discretion. True guide is whether litigant acted with due diligence. 18. In **University of Delhi v. Union of India and Others [2020 13 SCC 745]** was further relied on by the learned counsel. In para No.21 of the said judgment the decision in **Dehri Rohtas Light Railway Co. Ltd. v. District Board Bhojpur 1992 2 SCC 598** has been quoted wherein it has been held that the real test to determine the delay is that the petitioner should come to court before a parallel right is created and lapse of time is not attributable to any latches or negligence. In para No.22 of **Postmaster General v. Living Media (India) Ltd. 2012 3 SCC 563** para No.28 has been quoted which reads thus: _“28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern_ RSA NO.584 OF 2019 12 _technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government. ……………………………….”_ 19. In para No.23 of the said judgment it has been held that while considering the condonation of delay, the routine explanation would not be enough but it should be in the nature of indicating “sufficient cause” to justify the delay which will depend on the back drop of each case and will have to be weighed carefully by the courts based on the fact situation. 20. The plaintiff's case is that she came to know about the execution of Ext.A1 only in 2011. Petitioner and defendant were minors at the time of execution of Ext.A1. So father and grandmother had no right to execute such document suppressing plaintiff's share. But as per Ext.A1 settlement deed executed by Cheeru and Madhavan in the year 1969 the entire property was allotted to the defendant and it is contended by the defendant that plaintiff executed Ext.B1 receipt in the year 1999 on payment of Rs.15,000/- towards her share. It is contended that thereafter the property has been sold to different persons as per Ext.B2 to B9. In para No.31 of **University of Delhi** it has been held that it is a well accepted RSA NO.584 OF 2019 13 position that accrued right of the opposite party cannot be lightly dealt with. In pursuance of Ext.A1 the defendant has transferred the property to several persons and plaintiff has executed the receipt which is marked as Ext.B1 in 1999 though disputed by the plaintiff, during examination she admitted the same and it was marked and the present suit has been filed only in the year 2011. The suit has been dismissed by the trial court but the appellant opted to file the appeal only after a long lapse of about 564 days and stating that there is no sufficient reason the 1[st] Appellate Court dismissed the appeal. 21. The learned counsel further drew my attention to **Elstone Tea. Estates Ltd. v. Pius C. Mundadan 2022 3** **KLT 578** wherein there was delay of 838 days in filing the application to set aside an ex-parte decree, failure to take timely steps for serving notice on the 1[st] respondent and vague explanation offered for delay of 102 days in filing restoration applications had resulted in the dismissal of the application and this Court found that the lower court having exercised its discretion having considering all relevant aspects, this Court will not interfere with the decision. 22. In **Subbarayadu** it has been held that when the RSA NO.584 OF 2019 14 court concerned has exercised its discretion either condoning or declining to condone the delay the superior court will not normally interfere in the exercise of such discretion. In the present case, the suit was one for partition and admittedly there is delay of 564 days in filing the appeal. The appellant could not offer any sufficient cause for condoning the long delay. Appellant could not satisfy the court that she had acted with due diligence in prosecuting the matter. So evaluating the entire facts and circumstances, the 1[st] Appellate Court declined to condone the delay finding that there is no sufficient cause to condone the delay. So no substantial question of law emerges for consideration, for entertaining the 2[nd] appeal. Hence, appeal dismissed. No cost. Sd/- **M.R.ANITHA JUDGE** SMF //TRUE COPY// PA TO JUDGE