NARAYANI AMMA AND OTHERS v. NANGARATH OKKOTT KRISHNAN NAIR AND OTHERS

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN THURSDAY, THE 19TH DAY OF JULY 2018 / 28TH ASHADHA, 1940 FAO.No. 80 of 2017 I.A.NO. 521 OF 2016 & R.P.I.A.NO. 522 OF 2016 IN A.S. NO. 42/2008 OF III ADDITIONAL DISTRICT JUDGE, KOZHIKODE ## APPELLANT(S)/PETITIONERS IN I.A.521&522/16/LRS.OF PLAINTIFF IN O.S. ## 1 NARAYANI AMMA W/O.RAMAN NAIR, "PARVATHI NIVAS", KOTTOOR AMSOM, DESOM, KOYILANDY TALUK. - 2 CHANDRAN NAIR S/O.RAMAN NAIR, "PARVATHI NIVAS", KOTTOOR AMSOM, DESOM, KOYILANDY TALUK. - 3 THANKAMANI D/O.RAMAN NAIR, "PARVATHI NIVAS", KOTTOOR AMSOM, DESOM, KOYILANDY TALUK. BY ADVS.SRI.B.KRISHNAN SRI.R.PARTHASARATHY ## RESPONDENT(S)/RESPONDENTS 2,3,6 TO 9 IN I.A.521 & 522/16/DEFENDANTS:: 1. NANGARATH OKKOTT KRISHNAN NAIR S/O.KUTTIPARVATHI AMMA, VATTAPPARA, KOTTOOR AMSOM, DESOM, KOYILANDY TALUK. 2. NANGARATH OKKOTT LAKSHMIKUTTY AMMA D/O.KUTTIPARVATHI AMMA, KOTTOOR AMSOM, DESOM, KOYILANDY TALUK. 3. REMA, D/O.NARAYANAN NAIR, VAZHAVATTAM PINANGOT AMSOM, DESOM, WAYANAD DISTRICT. 4. CHATHANGERI ARAVINDAN S/O.NARAYANAN NAIR, NANMINDA AMSOM, PUNNASSERI DESOM, KOZHIKODE DISTRICT. FAO NO.80/2017 : 2 : 5. POYIL AJITHA D/O.NARAYANAN NAIR, KUNNATHARA AMSOM, DESOM, KOZHIKODE DISTRICT. 6. PERUVATTA RAVI S/O.NARAYANAN NAIR, KOTTOOR AMSOM, DESOM, KOYILANDY TALUK. R2 BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 19-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K. HARILAL & ANNIE JOHN, JJ.** ## **------------------------------------------FAO No. 80 of 2017** **-----------------------------------------Dated this the 19[th] day of July, 2018.** ## **JUDGMENT** ## K. Harilal,J. The appellants in this appeal are the appellants in A.S. No. 42 of 2008 of the III Additional District Court, Kozhikode and the petitioners in I.A No. 521 of 2016 and R.P.I.A No. 522 of 2016 filed therein. The aforesaid appeal was filed challenging the judgment and decree dismissing O.S. No. 62 of 2004 of the Sub Court, Koyilandy. The said appeal was dismissed on default and I.A. No.522 of 2016 was filed to re-admit the appeal. I.A. No. 521 of 2016 was filed to condone the delay of 1414 days in filing RPIA No. 522 of 2016. 2. According to the appellants, originally the aforesaid appeal was pending before the First Additional District Court and the same was heard on 19.07.2011. Thereafter, the appeal was posted to 08.08.2011, 13.08.2011, 25.08.2011, 01.08.2011, 10.09.2011, 18.09.2011, 25.09.2011 and 13.09.2011 for judgment. However, the judgment was not ready. While so, the aforesaid appeal was transferred to the III Additional District Court for hearing and disposal and the same was posted to 16.07.2012 for the appearance and hearing. But, in the meantime, the second appellant was pre-occupied with the treatment of illness of his father's sister, who died on 06.10.2012. The first appellant was laid up in a hospital and she had F.A.O. No.80/2017 -2- to be looked after. During this period, the brother-in-law of the appellants was expired and they had to look after the children of the sister. Thus, the appellants were pre-occupied by several unfortunate incidents occurred one by one in the family. Therefore, they could not enquire about the progress of the appeal. Later, in June, 2016, they came to know of the dismissal of the appeal and immediately they contacted the lawyer and realised that the appeal was dismissed on 25.07.2012. According to the appellants, there was no wilful negligence or latches on the part of the appellants in prosecuting the appeal. If the delay is not condoned and the appeal is not re-admitted, the appellants will be put to irreparable injury and great loss as the impugned judgment and decree, arose from a suit for partition, which ended in dismissal on default. 3. The respondents objected the aforesaid applications seeking condonation of delay and to re-admit the appeal on the files contending that there is no sufficient cause to condone the delay or to re-admit the appeal on the files again. According to them, eventhough the appellants' aunt Janakiamma had no issues, she was never looked after by the appellants. So also, the first appellant was not bedridden as stated by the appellants, for a period of four years. The brother-in-law of the petitioner was expired in 2007 and the said incident had no connection with the cause of delay. F.A.O. No.80/2017 -3- 4. After considering the rival pleas, the appellate court dismissed the aforesaid interlocutory applications by the impugned order on a finding that the appellants have failed to prove that they have sufficient cause to condone the delay and to restore the appeal. The aforesaid findings whereby the impugned order stands passed are assailed in this appeal. 5. Heard the learned counsel for the appellants and the learned counsel for the respondents. 6. The sum and the substance of the arguments advanced by the learned counsel for the appellants is that even though there is an inordinate delay in filing the application to restore the appeal, the said delay was not caused wilfully and there is no finding to the effect that the delay was caused deliberately with any oblique motive or _mala fide_ intention. In the absence of such a finding, the delay has to be considered liberally, in view of the decision of the Supreme Court in ## _**Collector, Land Acquisition, Anantnag and another v. Mst. Katiji**_ _**and others**_ (AIR 1987 SC 1353). The aforesaid decision is reiterated in _**B.S. Sheshagiri Setty and others v. State of Karnataka and others**_ [(2016) 2 SCC 123]. 7. _Per contra_ , the learned counsel for the respondents advanced his arguments to justify the dismissal of the aforesaid applications in the absence of sufficient cause. F.A.O. No.80/2017 -4- 8. Going by the impugned order, it could be seen that the court below dismissed the application on a finding that the reasons stated by the appellants for the delay in filing the application for restoration are not sufficient to condone the delay or to re-admit the appeal on the files. We have gone through the reasons stated for the delay and we find that the appellants cannot be justified for not enquiring about the progress of the appeal for a long period of four years and that the appellants were not diligent in prosecuting the appeal. However, we are inclined to take a different view in a different perspective. Going by the impugned order itself, we find that there is no finding to the effect that the delay in filing the restoration application was caused deliberately with any oblique or ulterior motive. In this context, it is pertinent to note that if the appeal is dismissed on default without considering the merits, the appellants alone will suffer. Therefore, it cannot be believed that they wilfully caused the dismissal of the appeal with any _mala fide_ intention or oblique motive, particularly when the suit is one for partition and the same was filed by the appellants herein. 9. As rightly pointed out by the learned counsel for the appellants, in _**Collector, Land Acquisition, Anantnag**_ , the Supreme Court has formulated certain guidelines in the matter of condoning the delay. Going by the above decision, we find that taking a liberal view is the general rule with certain exceptions. Culpable negligence, _mala fides_ F.A.O. No.80/2017 -5- and oblique motives in causing delay would fall under the exceptions to the general rule. In the instant case, there is absolutely no material to draw an inference that the delay was caused deliberately with _mala fides_ or by culpable negligence on the part of the appellants. 10. Moreover, we have gone through the proceedings sheet and find that initially the appeal was pending before the First Additional Sessions Court and the same was heard and reserved for judgment. Thereafter, the appeal was adjourned indefinitely and posted to several days i.e., on 08.08.2011, 13.08.2011, 25.08.2011, 01.09.2011, 10.09.2011, 18.09.2011, 25.09.2011 and 13.09.2011 for the reason that the judgment was not ready. Thereafter, the appeal was transferred abruptly to III Additional District Court, Kozhikode for hearing and disposal and it was posted on 16.07.2012. On that day, there was no appearance and the appeal was again posted to 25.07.2012. On that day, it was dismissed as there was no representation for the appellant. Since the matter was once heard and posted for judgment, it cannot be held that the appellants were not diligent in prosecuting the appeal. 11. In the above view, we are inclined to take a liberal view in the light of the decision laid down by the Apex Court in _**Collector, Land Acquisition, Anantnag**_ . At the same time, we find that no prejudice will be caused to the respondents, if the appeal is restored to the file and the same is heard on merits once again. Certainly, re-hearing would F.A.O. No.80/2017 -6- cause some inconvenience to the respondents; but the same can be compensated by paying costs to the respondents. Consequently, I.A.Nos. 521 and 522 of 2016 are allowed. In the result, this appeal will stand allowed on deposit of Rs.5000/(Rupees five thousand only) in the III Additional District Court, Kozhikode as cost to the respondents within one month from the date of receipt of a copy of this judgment. The contesting respondents are allowed to realise the said amount equally as cost from the said court. In the event of failure, the impugned order will stand as such in force. If the appellants comply with the said condition, the parties shall appear before the appellate court on 10.09.2018 and the III Additional District Court is directed to consider and dispose of the aforesaid appeal within a period of 30 days from the date of appearance of the parties, after affording an opportunity of being heard to both parties. The appellants are allowed to take steps to complete service on the third respondent herein. ## **K. HARILAL, JUDGE.** **ANNIE JOHN, JUDGE.** _Rv_ F.A.O. No.80/2017 -7- F.A.O. No.80/2017 -8-