Karthyayani and others v. Ammalu and others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: M.R. Anitha
Judgment Date: 2022-12-14
Court Decision / Holding: The Regular Second Appeal is dismissed; the parties shall bear their own costs.
Final Disposition: Appeal dismissed

Parties to the Case

Appellants / Petitioners

Karthyayani w/o Panangattukara Appu
Kuttappan s/o Karthiyayani
Radhakrishnan s/o Karthiyayani

Respondents

Ammalu
Krishnankutty
Vijayan
Santha

Legal Representation & Advocates

Counsels for Petitioners

• G. Sreekumar (Chelur)

Case Synopsis & Summary

This Regular Second Appeal (RSA 1264/2005) is before the Kerala High Court, with Justice M.R. Anitha delivering the judgment on 14 December 2022. The appellants, three plaintiffs (Karthyayani, Kuttappan, and Radhakrishnan), challenged an order in I.A.209/2005 in A.S.232/2000 of the Additional Sub Court, Irinjalakkuda, which petitioned to condone a delay in filing the appeal under Section 5 of the Limitation Act. The first appellate court had heard I.A.206/2005 (restoration) and I.A.209/2005 together; both were dismissed, leading to the present RSA. The plaintiffs asserted they were delay-affected due to circumstances involving the 3rd appellant’s absence while he was in Andhra Pradesh for employment and the ill health of their mother, but they failed to produce credible corroboration. The appellate court concluded there was no satisfactory explanation for the 120-day delay and that the 3rd appellant was not sufficiently established as being out of station. The High Court relied on precedents (K. Subbarayudu and Elstone Tea Estates) to emphasize deference to the lower court’s discretionary decision in condoning delay, maintaining that the merit of the partition suit was weak (they could not prove that the first appellant was Appu’s wife or that the subsequent children were his). Ultimately, the appeal is dismissed with costs to be borne by the parties.

Provisions of Law Cited

Section 5 of the Limitation ActOrder 41 Rule 3A of the Code of Civil Procedure

Legal Doctrines & Maxims

Due diligence in deciding condonation of delay
Higher courts generally will not interfere with the discretionary decisions of lower courts in condonation of delay; the true guide is due diligence.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contended that the delay in filing the appeal was not willful and that genuine reasons—namely, the 3rd appellant being in Andhra Pradesh for employment and the ill health of their mother—mitigated the delay. They asserted that restoration petitions were filed with bona fide intent and that the delay should be condoned in the interest of substantial justice. The absence of the 3rd appellant at the relevant times was explained, though the materials were not robustly corroborated.

Contentions of Respondents

The respondents contended that the delay petitions were not supported by satisfactory and credible justification, and that the appeals were included in a published list. They argued that there was no bonafide reason for the delay, and that the 1st appellate court’s discretionary decision to dismiss the delay petitions should stand without interference.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
K.Subbarayudu & Others v. Special Deputy Collector (Land Acquisition)	2017 12 SCC 840	Positive	Cited to support the proposition that a superior court will not ordinarily interfere with the lower court’s discretionary ruling on condonation of delay, the true test being due diligence.
Elstone Tea. Estates Ltd. v. Pius C. Mundadan	2022 3 KLT 578	Positive	Cited to illustrate that a lower court’s discretionary decision in delay matters should not be interfered with when relevant aspects have been duly considered.

Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 14[TH] DAY OF DECEMBER 2022 / 23RD AGRAHAYANA, 1944** **RSA NO. 1264 OF 2005** **AGAINST THE ORDER IN I.A.NO.209/2005 IN AS 232/2000 DATED 31.05.2005 ON THE FILE OF** **ADDITIONAL SUB COURT, IRINJALAKUDA** **(AGAINST THE JUDGMENT AND DECREE IN OS 1827/1998 ON THE FILE OF PRINCIPAL MUNSIFF COURT, IRINJALAKUDA)** ## **APPELLANTS/APPELLANTS/PLAINTIFFS 1 TO 3:** - 1 KARTHYAYANI, W/O PANANGATTUKARA APPU, EAST CHALAKUDY VILLAGE DESOM, MUKUNDAPURAM TALUK. - 2 KUTTAPPAN, S/O.KARTHYAYANI, PANANGATUKARA HOUSE, EAST CHALAKUDY, VILLAGE-DESOM, MUKUNDAPURAM TALUK. - 3 RADHAKRISHNAN, S/O.KARTHYAYANI, PANANGATUKARA HOUSE, EAST CHALAKUDY VILLAGE DESOM, MUKUNDAPURAM TALUK. BY ADV G.SREEKUMAR (CHELUR) ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** - 1 AMMALU, SECOND W/O.LATE PANANGATTUKARA APPU, KIZHAKECCHALAKUDY VILLAGE-DESOM, MUKUNDAPURAM TALUK. - 2 KRISHNANKUTTY, S/O.PANANGATTUKARA APPU, KIZHAKECHALAKUDY VILLAGE-DESOM,, MUKUNDAPURAM TALUK. - 3 VIJAYAN, S/O.PANANGATTUKARA APPU, KIZHAKECHALAKUDY VILLAGE- DESOM, MUKUNDAPURAM TALUK. - 4 SANTHA, D/O.LATE PANANGATUKARA APPU, KIZHAKECHALAKUDY VILLAGE-DESOM, MUKUNDAPURAM TALUK. **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.S.A NO. 1264 OF 2005 ## **JUDGMENT** ## **Dated this the 14[th] day of December, 2022.** This appeal has been filed against the order in I.A.No.209/2005 in A.S.No.232/2000 on the file of Additional Sub Court, Irinjalakkuda. I.A.No.209/2005 has been filed to condone the delay in filing the appeal under Section 5 of the Limitation Act. A common affidavit was filed in support of two petitions I.A.No.206/2005 and I.A.No.209/2005 in two appeals A.S.No.231/2000 and A.S.No.232/2000. 2. The 1[st] appellate court heard the matter together and a common judgment was passed. Appeal was filed only against the order of dismissal in I.A.No.209/2005 in A.S.No.232/2000. 3. According to the petitioner, petitioners are the plaintiffs in O.S.No.1827/1998 on the file of Munsiff's court, Iringalakkuda which has been filed for partition of the plaint schedule property. 3[rd] appellant filed supporting affidavit for and on R.S.A NO. 1264 OF 2005 **3** behalf of other appellants. According to him, he has been conducting the case and he and his wife went to Andrapradesh during July, 2004. So he is not in a position to conduct the appeal properly and his mother, another appellant is 84 years and was undergoing treatment under Dr. M. K. Ramachandran Pillai from 02.07.2004. When he contacted his counsel on 15.01.2005, he came to know about the appeals were dismissed on 17.09.2004. According to him, there is no willful latches on his part in not filing the appeal in time, hence the petition. 4. Objection has been filed in common in both the petition contending that appeal is included in the published list. On the date of list, appellant counsels' submitted there was no argument for appellants therefore the appeals were dismissed. Thereafter, they filed this petition without any bonafide and sufficient reason. The 1[st] appellate court heard the petitions filed to condone the delay along with I.A.No.206/2005 for restoration of the appeal. R.S.A NO. 1264 OF 2005 **4** 5. Petitioner was examined as PW1 and Exts.A1 to A4 was marked from his side. I.A.No.209/2005 was filed to condone the delay of 120 days in filing I.A.No.208/2005 which was filed for restoration of A.S.No.232/2000. Thereafter, the 1[st] appellate court dismissed the petitions to condone the delay and consequently petition to restore the appeal also dismissed. 6. Heard the learned counsel for the petitioner. According to the petitioner, 3[rd] appellant/3rd petitioner has been conducting the case and he was in Andrapradesh in connection with employment and hence, could not conduct the appeal. The 1[st] appellate court on going through the proceedings found that the appeals were included in the published list of the Principle Sub Court, Irinjalakkuda for joint hearing with A.S.No.231/2000. On the date of list, that is on 17.09.2004, the learned counsel for the respondents and their counsel were present and appellants and their counsel were absent and hence, appeals were dismissed. R.S.A NO. 1264 OF 2005 **5** 7. It has been found by the 1[st] appellate court that there is no evidence to show that 3[rd] appellant/3rd petitioner was in Andrapradesh in connection with employment as alleged and Exts.A1 to A4 produced are in connection with the alleged treatment undergone by the mother. So, it has been found by the 1[st] appellate court that absolutely there is no evidence to show that 3[rd] appellant, who was examined as PW1, was out of station. The 1[st] appellate court found that there is no proper explanation to condone the delay of 120 days. 8. Being an appeal suit, the personal presence of the appellant may not be necessary and the order passed by the 1[st] appellate court would go to show that on the date when the case was included in special list, the appellant and the learned counsel were absent and accordingly, the appeal was dismissed. Though appellant contented that he was in Andrapradesh in connection with his employment, no materials have been produced to substantiate that allegation. R.S.A NO. 1264 OF 2005 9. It is relevant in this context to quote _**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 superior court will not interfere in exercise of such discretion. True guide is whether litigant acted with due diligence. 10. It is also relevant to quote _**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 which had resulted in the dismissal of the application and this Court found that the lower court having exercised its discretion having considering all R.S.A NO. 1264 OF 2005 **7** relevant aspects, this Court will not interfere with the decision. 11. In the present case, the 1[st] appellate court has evaluated the sufficiency of reason for condoning the delay offered by the appellant and came to a conclusion that no convincing material has been produced by the appellant to prove that 3[rd] appellant was in Andrapradesh in connection with employment and hence, could not prosecute the appeal properly. In merit also, I am not satisfied that appellants have got a good case. Appellants filed suit for partition against the defendant Nos.1 to 4 who are alleged to be the wife and children of deceased Appu. Her case is that she was married first by Appu and subsequently 1[st] defendant was brought by Appu. On a detailed evaluation of fact circumstances and evidence from both side, the Trial court came to a conclusion that appellants failed to prove that 1[st] appellant is the wife of Appu and other appellants are children born to the 1[st] appellant out of Appu. So in merit also, appellants have no good case. R.S.A NO. 1264 OF 2005 So on a meticulous evaluation of the impugned orders and judgment passed by the 1[st] appellate court, I am of the view that no substantial question of law emerges for entertaining the 2[nd] appeal. Accordingly, the appeal dismissed. In the facts and circumstances, parties shall bear their respective costs. Sd/- rps/ **M.R.ANITHA, JUDGE**