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High Court of KeralaSingle JudgeDismissed

Dr. R. Vijayan v. C V Padmarajan and Others

Case / Petition Number:RSA No. 273 of 2014

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • P. Bhavadasan
Judgment Date
2014-03-28
Court Decision / Holding
This RSA is without merits and is dismissed.
Final Disposition
Dismissed

Parties to the Case

Appellants / Petitioners

  • Dr. R. Vijayan

Respondents

  • C V PADMARAJAN
  • MRUTHULA BHAI
  • BHAMINI DEVI
  • SUVARNNAKUMARI
  • RAJEEVAN
  • DR.SULEKHA DEVI
  • SUJITH CHANDRAN
  • AJITH CHANDRAN
  • PRABHAKARAN
  • THULASI B HAI
  • SURESH
  • MINI
  • SANTHAKUMARI
  • SUDHA DEVI
  • SUNANDHA DEVI SENAN
  • AMARSENAN
  • DR.SURESH SENAN
  • SARADA
  • RAJAMMA
  • JAGADAS
  • ANANDAN
  • MEENAKSHI
  • LALITHA
  • SOBHANA
  • SARAVANAN
  • SANTHA
  • MRIDULA
  • GOPI
  • ROHINIKUTTY
  • YESODHA
  • SUBHA
  • RAJENRA BABU
  • AMBIKA KUMARI
  • MANI @ SUDHI
  • APPUKKUTTAN @ SURA
  • SUJATHA @ SUMA
  • BHANUMATHY
  • AJITHA ANAND
  • HARIKUMAR
  • T.K.PRABASH
  • AMMINI
  • MOHANA P.RAJAN
  • ANITHA ANAND
  • T.K.SUDHA
  • T.K.PRAKASH
  • PRABHAVATHY
  • ASOK KUMAR
  • ASHALETHA

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri P. Vijayakumar
  • • Sri C.R. Reghunathan

Counsels for Respondents

  • • Sri N. Dharmadan (Sr.)
  • • Smt. D.P. Renu

Case Synopsis & Summary

RSA No. 273 of 2014 arises from a partition suit OS 521/1963 in which a preliminary decree was passed in 1968 and a final decree, based on a Commissioner’s report, was confirmed on 26 July 2006. The appellant- sixth defendant, later shown in the appeal as the 8th defendant, challenges the District Court’s final decree and the associated proceedings, claiming that infirmities and fraud vitiated the process and that equity did not properly reflect the rights of all parties, particularly the third defendant. He filed Regular Second Appeal AS 40 of 2013, along with I.A. 800 of 2013 seeking condonation of delay, after having learnt of the final decree only within three months of its passing. The lower appellate court dismissed the delay petition and, on the merits, dismissed the appeal in effect, finding no justification to interfere with the Commission report or to reopen objections. The appellant argued that his counsel had deceived him and that the equity of partition required revaluation of shares, while the respondents contended that the appellant slept on his rights for years, that the objections to the report were examined, and that there was no credible evidence of fraud. The High Court, relying on the principles laid down in Basawaran v. Spl. Land Acquisition Officer (AIR 2014 SC 746), held that though the law may be harsh, it remains the law, and declined to condone the delay, upholding the lower court’s decision and dismissing the RSA.

Provisions of Law Cited

Section 5 of the Limitation Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant contends that grave injustice has been caused by the commission report and the final decree. He argues that there may have been some laches, but equity requires re-examination of the disposition, especially since there was alleged fraud by his counsel. He asserts that the delay in approaching the court (I.A. 800 of 2013) should have been considered for condonation in light of the right of a party to obtain a just partition. He claims the commission report should be rejected, or at least reconsidered to ensure fair allocation among the co-defendants, particularly with regard to the third defendant’s share. He further maintains that knowledge of the final decree was delayed only due to circumstances created by the counsels, and seeks relief from the long delay to ensure substantive justice.

Contentions of Respondents

The respondents submit that the appellant slept on his rights for years after learning of the final decree, and there is no credible evidence of fraud. They argue that the objections to the commission report were examined, and the lower appellate court properly considered the equities involved, including the allocation to the third defendant. They contend that there is no sufficient cause to condone the delay as per the Basawaran guidelines, and that the final decree should stand as per the Commission report. The respondents emphasize that equity cannot override settled decrees after a long lapse and that the appeal should be dismissed for lack of justifiable grounds to interfere with the trial court’s final decree.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Basawaran v. Spl. Land Acquisition OfficerAIR 2014 SC 746PositiveCited for the principles and guidelines on handling petitions under Section 5 of the Limitation Act; used to justify not condoning delay and upholding the lower court’s decision.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **FRIDAY, THE 28TH DAY OF MARCH 2014/7TH CHAITHRA, 1936** ## **RSA.No. 273 of 2014** **-----------------------------** **AGAINST THE JUDGMENT IN AS 40/2013 of II ADDITIONAL DISTRICT COURT, KOLLAM DATED 21-12-2013 AGAINST THE JUDGMENT IN OS 521/1963 of MUNSIFF-MAGISTRATE COURT, PARAVOOR** **------------** ## **APPELLANT(S)/APPELLANT/8TH DEFENDANT:** **------------------------------------------------------------------** ## **DR.R.VIJAYAN, AGED 80 YEARS, MAROTTUMOODU, KONGALCHERRY, PARAVOOR, KOTTAPURAM VILLAGE, KOLLAM TALUK, KOLLAM DISTRICT.** **BY ADVS.SRI.P.VIJAYAKUMAR SRI.C.R.REGHUNATHAN** ## **RESPONDENT(S)/RESPONDENTS/PLAINTIFFS & 9TH DEFENDANT ONWARDS:** - **---------------------------------------------------------------------------------------------------------------** **1. C V PADMARAJAN, AGED 84 YEARS, VASANTHAM HOUSE, ANANDAVALLEESWARAM, KOLLAM-691 013.** **2. MRUTHULA BHAI, AGED 82 YEARS, MANJUSHA HOUSE, ASRAMAM, KOLLAM-691 002.** ## **3. BHAMINI DEVI, AGED 76 YEARS,** - **VRINDAVANAM HOUSE, KATTIYAKULAM, KOTTAPPURAMCHERRY, PARAVUR VILLAGE, KOLLAM-691 301.** **4. SUVARNNAKUMARI, AGED 72 YEARS, SUVARNALAYAM, PALAYAMKUNNU, VARKALA, CHERAYINKEEZHU TALUK, THIRUVANANTHAPURAM-695 146.** **5. RAJEEVAN, AGED 66 YEARS, S/O.THANKAMMA, VAISHAKH, ANAYARA, PATTOM, THIRUVANANTHAPURAM-695 004.** **6. DR.SULEKHA DEVI, AGED 65 YEARS, W/O.SARATH CHANDRAN, ASWATHI, ANAYARA, PATTOM, THIRUVANANTHAPURAM-695 004.** **PJ** **...2/-** **..2..** ## **RSA.No. 273 of 2014** ## **-----------------------------** **7. SUJITH CHANDRAN, AGED 45 YEARS, ASWATHI, ANAYARA, PATTOM, THIRUVANANTHAPURAM-695 004.** **8. AJITH CHANDRAN, AGED 43 YEARS, S/O.SARATH CHANDRAN, ASWATHI, ANAYARA, PATTOM, THIRUVANANTHAPURAM-695 004.** **9. PRABHAKARAN, AGED 84 YEARS, S/O.RAGHAVAN, AMBADI MANNEETHU HOUSE, CHERUKOLPUZHA, RANNY TALUK, PATHANAMTHITTA-689 650.** **10. THULASI B HAI, AGED 40 YEARS,** - **D/O.RAGHAVAN, THULASI NIVAS, MUTTATHUKONAM, CHENNEERKKARA VILLAGE, ELAVUMTHITTA, PATHANAMTHITTA-689 625.** ## **11. SURESH, AGED 45 YEARS,** - **S/O.THULASI BAI, THULASI NIVAS, MUTTATHUKONAM, CHENNEERKKARA VILLAGE, ELAVUMTHITTA, PATHANAMTHITTA-689 625.** ## **12. MINI, AGED 40 YEARS,** - **D/O.THULASI BAI, THULASI NIVAS, MUTTATHUKONAM, CHENNEERKKARA VILLAGE, ELAVUMTHITTA, PATHANAMTHITTA-689 625.** **13. SANTHAKUMARI, AGED 67 YEARS, D/O.RAGHAVAN, KUZHYTHAZHAPPALLY, MURINJAKKAL, KOODAL VILLAGE, PATHANAMTHITTA-689 693.** **14. SUDHA DEVI, AGED 65 YEARS, NANNANAM, CHERUKOLE, VALIYAKULANGARA.P.O. MAVELIKKARA TALUK, ALAPPUZHA-690 104.** **15. SUNANDHA DEVI SENAN, AGED 67 YEARS, 658, THE CARLOSE, BLOCK 513, Y 10 CHUNKANG ROAD # 02-37, SINGAPORE-787 067.** **16. AMARSENAN, AGED 40 YEARS, S/O.SUNANDHA DEVI, 658, CLORENDOM AVENUE, SANFRANCISCO, CALIFORNIA, 94131, USA.** **17. DR.SURESH SENAN, AGED 38 YEARS, S/O.SUNANDHA DEVI, CHISELAND 169, 3161 VM RHOOM, NETHERLAND.** **PJ** **...3/-** **..3..** ## **RSA.No. 273 of 2014** ## **-----------------------------** ## **18. SARADA, AGED 88 YEARS,** **D/O.LEKSHMIKUTTY, MUTTAVILAKATHU HOUSE, KOTTAPPURAM, PARAVUR, KOLLAM-691 301.** **19. RAJAMMA, AGED 86 YEARS, D/O.LEKSHMIKUTTY, MUTTAVILAKATHU HOUSE, KOTTAPPURAM, KONGALCHERRY, PARAVUR, KOLLAM-691 301.** **20. JAGADAS, AGED 46 YEARS, S/O.RAJAMMA, MUTTAVILAKATHU HOUSE, KONGALCHERRY, KOTTAPPURAM, PARAVUR, KOLLAM-691 301.** **21. ANANDAN, AGED 82 YEARS, KANNAVILAKAM, KONGALCHERRY, KOTTAPPURAM, PARAVUR, KOLLAM-691 301.** **22. MEENAKSHI, AGED 75 YEARS, POOVAKATTU VEEDU, KONGALCHERRY, KOTTAPPURAM, PARAVUR, KOLLAM-691 301.** **23. LALITHA, AGED 65 YEARS, D/O.MEENAKSHI, VALIYAVEEDU, KONGALCHERRY, KOTTAPPURAM, PARAVUR, KOLLAM-691 301.** **24. SOBHANA, AGED 62 YEARS, D/O.MEENAKSHI, VALIYAVEEDU, KONGALCHERRY, KOTTAPPURAM, PARAVUR, KOLLAM-691 301.** **25. SARAVANAN, AGED 40 YEARS, VALIYAVEEDU, KONGALCHERRY, KOTTAPPURAM, PARAVUR, KOLLAM-691 301.** **26. SANTHA, AGED 58 YEARS, D/O.MEENAKSHI, AMBALATHUM VEEDU, KOTTAPPURAM, KONGALCHERRY, PARAVU, KOLLAM-691 301.** **27. MRIDULA, AGED 56 YEARS, D/O.MEENAKSHI, AMBALATHUM VEEDU, KOTTAPPURAM KONGALCHERRY, PARAVU, KOLLAM-691 301.** **28. GOPI, AGED 60 YEARS, S/O.MEENAKSHI, POOVAKKATTU HOUSE, KOTTAPPURAMCHERRY, PARAVUR, KOLLAM-691 301.** **29. ROHINIKUTTY, AGED 76 YEARS, KRISHNALAYAM, VALIYAVEEDU, KONGALCHERRY, KOTTAPPURAM, PARAVUR, KOLLAM-691 301.** **PJ** **...4/-** **..4..** ## **RSA.No. 273 of 2014** ## **-----------------------------** ## **30. YESODHA, AGED 75 YEARS, KINARUMMOODU, ERATHUCHERRI, CHATHANNOOR, KOLLAM-691 301.** **31. SUBHA, AGED 60 YEARS, D/O.YESODHA, KINARUMMOODU, ERATHUCHERRI, CHATHANNOOR, KOLLAM-691 301.** **32. RAJENRA BABU, AGED 56 YEARS, S/O.YESODHA, KINARUMMOODU, ERATHUCHERRI, CHATHANNOOR, KOLLAM-691 301.** **33. AMBIKA KUMARI, AGED 65 YEARS, D/O.YESODHA, RAMAENTAZHIKAM HOUSE, KURUMANDAL, PARAVUR, KOLLAM-691 301.** **34. MANI @ SUDHI, AGED 62 YEARS, S/O.LEKSHMIKUTTY, CHANDRAVILASOM, PERUMPUZHA, PARAVUR, KOLLAM-691 504.** **35. APPUKKUTTAN @ SURA, AGED 72 YEARS, S/O.KALLYANI, CHANDRAVILASOM, PERUMPUZHA, PARAVUR, KOLLAM-691 301.** **36. SUJATHA @ SUMA, AGED 69 YEARS, D/O.KALLYANI, CHANDRAVILASOM, PERUMPUZHA, PARAVUR, KOLLAM-691 301.** ## **37. BHANUMATHY, AGED 67 YEARS,** - **W/O.ANANDAN, KANNAVILAKOM VEEDU, KONGALCHERY, KOTTAPURAM VILLAGE, PARAVUR, KOLLAM-691 301.** **38. AJITHA ANAND, AGED 42 YEARS, D/O.ANANDAN, KANNAVILAKOM VEEDU, KONGALCHERY, KOTTAPURAM VILLAGE, PARAVUR, KOLLAM-691 301.** ## **39. HARIKUMAR, AGED 38 YEARS,** - **S/O.ANANDAN, KANNAVILAKOM VEEDU, KONGALCHERY, KOTTAPURAM VILLAGE, PARAVUR, KOLLAM-691 301.** **40. T.K.PRABASH, AGED 60 YEARS, S/O.ROHINIKUTTY, RAMAMANDIRAM, KOTTUKONAM, POOTHAKULAM, PARAVUR, KOLLAM-691 013.** **41. AMMINI, AGED 58 YEARS, D/O.ROHINIKUTTY, HARINIVAS, KOONAYIL, PARAVUR, KOLLAM-691 301.** **PJ** **...5/-** **..5..** ## **RSA.No. 273 of 2014** ## **-----------------------------** **42. MOHANA P.RAJAN, AGED 54 YEARS, PREM BHAVAN, SREENIVASAPURAM, MUTTAMBALAM, VARKALA, THIRUVANANTHAPURAM-695 145.** **43. ANITHA ANAND, AGED 40 YEARS, D/O.ANANDAN, KANNAVILAKOM VEEDU, KONGAL, PARAVUR, KOLLAM-691 301.** **44. T.K.SUDHA, AGED 52 YEARS, MACHARUVILA VEEDU, POZHIKKARA, KOTTAPPURAM PARAVUR, KOLLAM-691 301.** **45. T.K.PRAKASH, AGED 50 YEARS DAMA MANDIRAM, KOTTUKONAM, POOTHAKULAM, KOLLAM-691 013.** **46. PRABHAVATHY, AGED 70 YEARS, W/O.SUKUMARAN, MUTTATHARA HOUSE (SAROVAR), KONGALCHERRY, KOTTAPPURAM, KOLLAM-691 013.** **47. ASOK KUMAR, AGED 48 YEARS, S/O.SUKUMARAN, DAMA MANDIRAM, KOTTUKONAM, POOTHAKULAM, KOLLAM-691 013.** **48. ASHALETHA, AGED 45 YEARS, D/O.SUKUMARAN, REVATHY GARDEN, KOTTAPURAMCHERRI, NEAR PARAVUR BUS STAND, PARAVUR, KOLLAM-691 013.** **R1 BY ADVS. SRI.N.DHARMADAN (SR.) SMT.D.P.RENU** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 273 of 2014 - - - - - - - - - - - - - - - - - - - - - - Dated this the 28[th] day of March, 2014. ## **JUDGMENT** Half a century has elapsed since the litigation began in this case. It is almost coming to an end. Then comes the 6[th] defendant to revive the litigation again intending to carry on for another half a century. 2. In a partition suit, O.S. 521 of 1963, it is admitted by both sides that preliminary decree was passed in the year 1968. None approached the court for passing of the final decree. After a long time, the decree holders approached the court for passing of the final decree. A Commissioner was appointed and he effected partition by metes and bounds and submitted a report. The trial court after taking note of the objections filed by the parties worked out the shares and equities and passed a decree in RSA.273/2014. 2 terms of the commission report. Final decree was passed on 26.7.2006. 3. Seven years later the appellant suddenly wakes up from his slumber and feeling that the trial court judgment and decree are bad in law and there are infirmities in the judgment and decree of the court below comes forward with an appeal before the District Court as A.S. 40 of 2013. As the appeal was hopelessly barred by limitation, he had also filed I.A. 800 of 2013 to condone the delay. 4. It is interesting to note that the petitioner appeared in person before the lower appellate court initially. Finding that the affidavit was not satisfactory, the court below advised the petitioner to file a better affidavit. That was done. He was subjected to cross-examination. After examination of the petitioner, the court below considered the issue in detail. The court below found that the main allegation was that fraud RSA.273/2014. 3 had been played by his counsel and that has resulted in injustice. 5. Even though that was the allegation in the petition, no evidence to that effect was adduced. The court below found that even going by the version given in the petition, he came to know about the final decree three months after the passing of the final decree. The court below then came to the conclusion that there was no justification for the appellant before the said court for having waited for six and a half years to approach the court below for redressal of his grievances. Finding no sufficient cause for condoning the delay, the lower appellate court dismissed the delay condonation petition and consequently the appeal also. It is the said order that is assailed in this appeal. 6. Learned counsel appearing for the appellant very vehemently contended that grave injustice has been done to the appellant by accepting the commission report and passing RSA.273/2014. 4 the final decree on that basis. It was pointed out that there might have been some laches on the part of the appellant in filing objection to the commission report, but that may not stand in the way of the court assessing the report and doing justice. It is also contended that the commission report should have been rejected in toto and that the commission report cannot be sustained in law. 7. Arguments are formidable. But the question is whether they merit consideration. As already noticed, the preliminary decree was passed in 1968 and final decree in 2006. As noticed by the lower appellate court, the appellant had deposed before the lower court that he was aware of the passing of the final decree within three months of the passing of the final decree. What did he do thereafter is not available in evidence? On going through the records made available, it is seen that the main grievance was that equity in favour of the third defendant had not been properly worked out. One RSA.273/2014. 5 has to remember that the appellant who is the sixth defendant (shown in the appeal as 8[th] defendant) who has been allotted independent share, is only concerned with the allotment to third defendant. The third defendant has no grievance regarding the allotment. No objection is seen urged before the court below regarding the allocation to the appellant. 8. The commissioner has given his reasons as to how he had arrived at the valuation and how he had effected partition. There is no case for the appellant that he was unaware of the final decree. In fact he had filed objection to the commission report also. It was after taking note of the objections that the court below accepted the commission report and passed the final decree. 9. As to what is the fraud played by the counsel for the appellant on him is not also discernible from the records. Before this court also nothing is stated except saying that the counsel has played fraud on the appellant. No material is RSA.273/2014. 6 produced or circumstance is shown both before the appellate court or before this court in that regard. The appellant slept over his rights and woke up from his slumber one fine morning long after the final decree had been passed and now when delivery is actually ordered, he comes forward with frivolous claims. 10. This court finds no reasons to interfere with the judgment and decree of the lower appellate court especially in view of the decision reported in Basawaran v. Spl. Land Acquisition Officer (AIR 2014 SC 746) wherein the principles and guidelines while dealing with a petition under Section 5 of Limitation Act have been narrated. The Apex Court held that law may be harsh and hard but that is still the law. If the guidelines so laid is applied to the facts of this case, one is left with no doubt that the lower appellate court is fully justified in dismissing the delay condonation petition and consequently the appeal. RSA.273/2014. 7 No grounds are made out to interfere with the orders of the courts below. This R.S.A. is without merits and is dismissed. P. BHAVADASAN, JUDGE sb.