KANCHANAMALA ANJANA v. JANAKI CHANDRAMATHI and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN THURSDAY, THE 4TH DAY OF DECEMBER 2014/13TH AGRAHAYANA, 1936 OP(C).No. 3812 of 2013 (O) ------------------------------(A.S.No.29/2000 OF SUB COURT, KOTTARAKKARA) ORIGINAL PETITIONER/PETITIONER/APPELLANT: ------------------------------------------------------ KANCHANAMALA ANJANA, PARUTHIYARA, ODANAVATTOM MURI VELIYAM VILLAGE. BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.MANU SEBASTIAN SRI.K.J.SHARATH KUMAR RESPONDENTS/RESPONDENTS 1,3,4 & 5/1ST RESPONDENT & LRS OF DECEASED ORIGINAL 2ND RESPONDENT.: ------------------------------------------------------------------------------ ## 1. JANAKI CHANDRAMATHI MANIMANDIRAM, S.N.PURAM PAVITHRESWARAM VILLAGE-691624. ## 2. NIRMALA W/O.GOPALAKRISHNAN, KADAYIL VEEDU, PARUTHIYARA VELIYAM VILLAGE-691540. ## 3. NIHA D/O.GOPALAKRISHNAN, KADAYIL VEEDU, PARUTHIYARA VELIYAM VILLAGE-691540. ## 4. NIJI D/O.GOPALAKRISHNAN, KADAYIL VEEDU, PARUTHIYARA VELIYAM VILLAGE-691540. R2-R4 BY ADV. SRI.K.V.ANIL KUMAR R2-R4 BY ADV. SRI.AJITH MURALI THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 04-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 3812 of 2013 (O) ------------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS : ------------------------------- EXHIBIT-P1: A TRUE COPY OF COMMON JUDGMENT DATED 30.09.1999 IN OS NO.434/95 & 46/96 OF THE MUNSIFF'S COURT, KOTTARAKKARA. - EXHIBIT-P2: A TRUE COPY OF MEMORANDUM OF APPEAL IN A.S.NO.29/00 ON THE FILE OF THE SUBORDINATE COURT, KOTTARAKKARA. - EXHIBIT-P3: A TRUE COPY OF JUDGMENT DATED 09.06.2009 IN AS NO.8/00 OF THE SUB COURT, KOTTARAKKARA ALONG WITH THE COMPROMISE. - EXHIBIT-P4: A TRUE COPY OF JUDGMENT DATED 28.07.2009 IN AS NO.29/00 OF THE SUB COURT, KOTTARAKKARA. - EXHIBIT-P5: A TRUE COPY OF IA NO.1054/11 IN AS NO.29/00 ON THE FILE OF THE SUB COURT, KOTTARAKKARA. - EXHIBIT-P6: A TRUE COPY OF IA NO.1053/2011 IN AS NO.29/00 ON THE FILE OF THE SUB COURT, KOTTARAKKARA. - EXHIBIT-P7: A TRUE COPY OF COUNTER AFFIDAVIT FILED BY RESPONDENTS 2 TO 4 IN IA NO.1053/11. - EXHIBIT-P8: A TRUE COPY OF ORDER DATED 17.06.2013 IN IA NO.1053/11 IN AS NO.29/00 ON THE FILE OF THE SUB COURT, KOTTARAKKARA. - EXHIBIT-P9: A TRUE COPY OF ORDER DATED 17.06.2013 IN IA NO.1054/11 IN AS NO.29/00 ON THE FILE OF THE SUB COURT, KOTTARAKKARA. RESPONDENTS' EXHIBITS: NIL. ------------------------------ // True Copy // P.A. To Judge. smp ## **P.BHAVADASAN, J.** **-------------------------------------------------Original Petition (Civil) No.3812 OF 2013 -------------------------------------------------Dated this the 4[rd] day of December, 2014.** ## **J U D G M E N T** Under challenge is Exts.P8 and P9 orders whereby the applications for re-admission of the appeal filed by the petitioner and the petition to condone delay in filing the petition to re-admit the appeal was dismissed by the court below. 2. The facts absolutely necessary for the purpose of disposal of the original petition are as follows: O.S.No.434/1995 was a suit filed by the petitioner herein who is the plaintiff for declaration and other consequential reliefs. It related to 25 cents of property which she claimed to have obtained by virtue of a gift deed executed by her mother. The defendant in the suit is none other than the sister of the plaintiff. The contention of the defendant was that though there was a gift deed in favour of the plaintiff, that was subsequently cancelled and there was no subsisting gift in favour of the plaintiff. The defendant in O.S.No.434/1995 in turn laid a suit for partition as **O.P.(C) No.3812/2013** **2** O.S.No.46/1996 in which she impleaded the petitioner herein and their brother Gopalakrishnan as respondents. Both the suits were tried jointly. O.S.No.434/1995 was dismissed and O.S.No.46/1996 was decreed. Against the decree in O.S.No.434/1995, the plaintiff filed A.S.No.8/2000 before the lower appellate court and as against the decree in O.S.No.46/1996, she filed A.S.No.29/2000. During the pendency of these appeals, their brother Gopalakrishnan passed away. There was a mediation between the parties after that and a compromise was entered into. Recording the compromise, A.S.No.8/2000 was disposed of and A.S.No.29/2000 happened to be dismissed as not pressed. 3. According to the petitioner, violating the terms of compromise, legal heirs of Gopalakrishnan moved the trial court for passing of supplementary preliminary decree. Therefore, it became necessary for the petitioner herein to reagitate A.S.No.29/2000. Hence I.A.Nos.1053 and 1054 of 2011 were moved before the lower appellate court which as already stated were one for re-admission of appeal and the other for **O.P.(C) No.3812/2013** **3** condonation of delay in filing the petition to re-admit the appeal. 4. The lower appellate court, observing that petition to re-admit the appeal will not lie since the appeal was dismissed as not pressed, dismissed I.A.No.1053/2011. Finding that there are no grounds to condone delay, I.A.No.1054/2011 was also dismissed. 5. Learned counsel appearing for the petitioner contended that even assuming that a petition for re-admission under Order 41 Rule 19 of the Code of Civil Procedure will not lie, there was no reason or justification for the court below not to treat the petition as one under Section 151 of the Code of Civil Procedure and grant the relief accordingly. The circumstances under which the petitioner was constrained to move for re-admission of the appeal was that contrary to the compromise entered into between the parties when the legal heirs of late Gopalakrishnan moved for passing of supplementary preliminary decree, compromise was put in jeopardy. 6. Relying on the decision in _**G. Christhudas and another**_ _vs._ _**Anbiah (Dead) and others**_ (AIR 2003 Supreme Court **O.P.(C) No.3812/2013** **4** 1590), it was pointed out by the learned counsel for the petitioner that at any rate there was no justification for the court below in not exercising his inherent powers to grant relief to the petitioner. 7. Learned counsel appearing for the respondent, on the other hand, contended that having filed a petition under Order 41 Rule 19 CPC and got it dismissed, the remedy available was to file an appeal as provided under Order 43 Rule 1(d) CPC and therefore the original petition is not maintainable. Further it is contended that the legal heirs of late Gopalakrishnan were not parties to the compromise and therefore they are not bound by the compromise. The claim now made that petition should not have been treated as one under Order 41 Rule 19 CPC cannot be countenanced because the petitioner had no such case before the court below. 8. It is true that the petition for re-admission was filed under Order 41 Rule 19 CPC by the petitioner before this Court. Order 41 Rule 19 CPC contemplates a situation where an appeal was dismissed for default and not a case where an appeal is **O.P.(C) No.3812/2013** **5** dismissed as not pressed. Clearly, the petition under Order 41 Rule 19 CPC was misconceived and could not have been entertained by the court below. As rightly noticed by the court below, appeal cannot be re-admitted because it was not due to any fault of the court that the appeal happened to be dismissed. ## 9. In the decision in _**G. Christhudas and another** vs._ _**Anbiah (Dead) and others**_ (AIR 2003 Supreme Court 1590), it was observed as follows: “4. We may notice that appellant No.4 died on 25-10-1970, appellant No.3 died on 1-12-1971 and appellant No.1 died on 7-10-1973. The appeal was ordered to be dismissed on the ground that the persons interested to prosecute the appeal had not moved within time. The dismissal for nonprosecution of the appeal by persons interested in the matter could only be under S.151 C.P.C and not under any other provision of O.XLI of C.P.C. If an appeal is dismissed under S.151 C.P.C., Art. 122 of the Limitation Act would have no application because when a Court makes an order under S.151 C.P.C it is implicit that such a Court has the power to entertain an application to set aside its order made under S.151 C.P.C. The power exercised under S.151 C.P.C is ex debito justitiae. An application invoking **O.P.(C) No.3812/2013** **6** the inherent power of the Court under S.151 C.P.C is not one which a party is required to make under any provisions of the C.P.C for setting in motion the machinery of the Court. Thus, Art.122 of the Limitation Act has no application to such an application”. 10. In the above case an identical situation was considered and there is no reason as to why the principles in that case cannot be applied to the present case. True, legal heirs of late Gopalakrishnan were not parties to the compromise. But the circumstances under which the petitioner happened to represent that A.S.No.29/2000 was not pressed have already been mentioned. Further quoting a wrong provision cannot be treated as fatal when adherence to technicalities results in injustice. For the above reasons, this original petition is allowed and the impugned orders are set aside and A.S.No.29/2000 stands restored. The petitioner will be at liberty to move the lower appellate court for necessary reliefs as it deems first and if an application is filed, the lower appellate court shall dispose of the same in accordance with law. The parties will appear before the lower appellate court on 12.01.2015. The lower appellate court **O.P.(C) No.3812/2013** **7** may make every endeavour to dispose of the matter before summer vacation in 2015 commences. Sd/- **P.BHAVADASAN JUDGE** smp