P. Gowri and others v. GOPINATHAN and K.V. KOCHUMADHAVI and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** ## **MONDAY, THE 08TH DAY OF APRIL 2019 / 18TH CHAITHRA, 1941** ## **RSA.No. 387 of 2006** **AGAINST THE JUDGMENT AND DECREE DATED 15-03-2006 IN I.A NO.1411 OF 2005 IN AS 131/2005 of SUB COURT, OTTAPPALAM.** **AGAINST THE JUDGMENT AND DECREE DATED 20-12-2004 IN I.A No.2245 of 2002 IN OS 572/2000 of MUNSIFF COURT, OTTAPPALAM.** ## **APPELLANTS/APPELLANTS/DEFENDANTS 1 TO 4 :** - **1 P.GOWRI, WIDOW OF VINOD KRISHNAN. 2 ANIL KUMAR, S/O. LATE VINOD KRISHNAN. 3 SINDHU, D/O. LATE VINOD KRISHNAN. 4 PRIYA, D/O. LATE VINOD KRISHNAN, ALL ARE RESIDING AT MOOLATHODIYIL HOUSE, PANAMANNA DESOM, KANIYAMPURAM AMSOM, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADVS.SRI.JIBU P THOMAS & SRI.T.C.SURESH MENON.** ## **RESPONDENTS/RSPONDENTS-PLAINTIFF/5TH DEFENDANT :** - **1 GOPINATHAN, S/O KALLINGAL NARAYANAN EZHUTHASSAN, RESIDING AT MOOLATHODIYIL HOUSE, PANAMANNA DESOM, KANIYAMPURM AMSOM, OTTAPALAM TALUK, PALAKKAD DISTRICT.** - **2 K.V. KOCHUMADHAVI, W/O. M.K. RAMACHANRAN, RESIDING AT MELEPAT, KIZHAKKETHIL HOUSE, AYILAKADE, EDAPPAL, MALAPPURAM DISTRICT.** **BY ADVS. SRI.SANTHEEP ANKARATH & SRI.M.HARISHARMA** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA.No. 387 of 2006 2** ## A.HARIPRASAD, J. -------------------------------------- R.S.A No.387 of 2006 -------------------------------------- Dated this the 8th day of April, 2019 ## J U D G M E N T Heard the learned counsel for the appellants and respondents. 2. Appellants are aggrieved by the dismissal of a petition filed under Section 5 of the Limitation Act, 1963, for condonation of delay in filing an appeal against the order passed by the trial court in a final decree matter in a partition suit. The trial court passed a final decree in the suit for partition in the following terms : “ In the result, the final decree is passed as follows : - 1) 'A' schedule property together with the improvements therein as shown in 'A1' schedule in Ext.C2 series is allotted to the plaintiff. The - right, title and interest over these property shall ## **RSA.No. 387 of 2006 3** be vested with him. - 2) 'B' schedule property together with the improvements therein as shown in 'B1' schedule in Ext.C2 series is allotted to D1 to 4 jointly. The right title and interest over these properties shall be vested with them. - 3) 'C' schedule properties together with the improvements therein as shown in 'C1' schedule in Ext.C2 series is allotted to D5. The right, title and interest over these properties shall be vested with him. - 4) 'G' schedule is the common pathway which can be used by all sharers. - 5) Towards the equalisation of share value D1 to 4 shall pay Rs.10,533/- to the plaintiff and Rs.18,683/- to D5. The above amount shall be a charge over the 'B' schedule of D1 to 4. - 6) Towards equalisation of cost, plaintiff shall pay - Rs.21/- to D1 to 4 and Rs.35/- to D5. These ## **RSA.No. 387 of 2006 4** amount shall be a charge over the 'A' schedule of plaintiff. - 7) Ext.C1 and C2 series shall form part of final decree. - 8) The cost of the final decree including the value of NJS shall be borne by the sharers, in proportion to their share. - 9) The parties shall deposit in the court the amount for NJS for engrossing final decree within two months. If any party fails to deposit their amount for the NJS as directed, the interested party shall be at liberty to deposit the entire amount and in such a case he shall be entitled to realise these amount from the party liable for the same.” 3. Appellants are the defendants 1 to 4 in the partition suit. Respondents are the plaintiff and a supporting defendant. The appeal was filed with a delay of 280 days. Along with the appeal against the **RSA.No. 387 of 2006 5** final decree, a delay condonation petition was filed as mentioned above. The lower appellate court found that there was no reason for condonation of the delay. In paragraph 4 of the order, reasons are enumerated by the court below, which is quoted hereunder : “ 4. In the enquiry first appellant first defendant got examined as PW1. In the evidence she repeated that she was suffering from Rheumatic ailments since 20-12-2004 and hence she could meet their counsel only on 16-08-2005 and that was the delay in filing the appeal. I don't find any merit in this explanation for the inordinate delay of 280 days. It is significant to note that appellants 2 to 4 are PW's children, of whom second appellant Anilkumar is admittedly working in a bank very close to the court PW1 in her cross examination, admits that it was her son Anilkumar who was used to meet the counsel for conducting the case. Even if PW1 was sick and she could not meet her counsel, there was her son Anilkumar who was **RSA.No. 387 of 2006 6** handling the case. There is absolutely no merit in the explanation that since PW1 was suffering from Rheumatic ailments, the filing of the appeal delayed. So the ailment of the first appellant PW1 Gouri is not at all an explanation for the delay. There is no explanation as to why other appellants, who are her children, could not take steps in filing the appeal within the time. It is therefore concluded that first appellant's ailment is not an explanation for condonation the delay in filing the appeal.” 4. Learned counsel for the appellants strongly contended that the lower appellate court failed to exercise the jurisdiction vested in it for considering the matters correctly. According to him, the delay of 280 days in filing the appeal has been explained and the lower appellate court took a rigid view and dismissed the application. Consequently, the appeal against the final decree was also dismissed. **RSA.No. 387 of 2006 7** 5. Learned counsel for the appellants relied on two decisions of the Supreme Court in State of Bihar and Others v. Kameshwar Prasad Singh and Another ((2000)9 SCC 94) and P.Mani Moopanar v. K.Rajammal and Others ((2005)11 SCC 800) to buttress a proposition that liberal approach should be adopted in the matter of delay condonation applications. It is also contended that the power to condone delay in approaching the court has been conferred upon the courts to enable them to do substantial justice to parties by disposing of matters on merits. It is further argued that merit of the matter shall not be considered at the time when delay condonation petition is being considered. 6. Learned counsel for the respondents argued that the ratio in the above decisions cannot be applied to this case as the facts therein and facts herein are entirely different. Not only that, some other decisions by the apex court will indicate that merit is also a matter **RSA.No. 387 of 2006 8** relevant for consideration at the time when delay condonation petitions with huge delay in filing appeals are decided. A matter which does not have any merit shall not be allowed to continue on the file causing prejudice at least to one of the parties. 7. Having regard to the facts and circumstances, I am of the view that the decisions relied on by the learned counsel for the appellants cannot be applied to this case, since on facts, it has been found by the lower appellate court rightly that no sufficient cause has been shown for condonation of delay. Except the interested ipse dixit of the petitioners/appellants, no other material is produced to show that she was laid up for 280 days as contended in the petition. Not only that, it is pointed out by the learned counsel for the respondents that it had come out in evidence that PW1's son was managing the affairs and conducting the case. There was no occasion for PW1 to approach the court belatedly as long as her son was conducting the case on her **RSA.No. 387 of 2006 9** behalf. These aspects were considered by the court below and dismissed the application. I find no substantial question of law arising in this appeal. 8. Learned counsel for the appellants contended that there are two sets of plans and reports in a final decree proceedings in the partition suit and it will create a lot of confusions at the time of execution. It is true that in a final decree proceedings, there can only be one plan and one report and there cannot be more plans and reports operative at the same time. In this case, records show that the first plan and report was remitted to the Commissioner as per order dated 18-10- 2004. The reasons for remission are stated in paragraph 6, which is quoted hereunder : “6. Even though petitioner and R1 to 5 disputed the value of the house and trees in the property they have not adduced any evidence or brought any **RSA.No. 387 of 2006 10** material before the Court to show that the valuation given by advocate commissioner is not correct. Hence the objections with regard to the valuation given by advocate commissioner cannot be sustained. But from the commission report it can be seen that the way provided to the parties is not shown as a schedule and the length of the way is also not stated. The fact that way can be used by all the 3 parties is also not seen mentioned in the report. In the rough sketch it is not made clear whether the way is reaching upto A schedule item No.2. It is also not stated to whom the trees in the way are allotted. Apart from that, there is mistake in the boundaries set apart to the final decree petitioner and respondent No.5. The mistakes in the boundaries are also to be corrected by the advocate commissioner. For correcting the above mistakes in the report partition account and rough plan the report of the advocate commissioner is to be **RSA.No. 387 of 2006 11** remitted.” 9. It is clear that the remission was for a specific purpose and after remitting the Commissioner's report and plan, he had visited the property and set out the details of the pathway provided to item No.3 property. Only for this limited extent, Ext.C2(a) plan can be looked into. Regarding the allotment of properties, there is no change made in Exts.C2(a) from Ext.C1(a). Therefore, I find no injustice or prejudice caused to the parties by referring to two plans in the final decree order. 10. Learned counsel for the appellants contended that he is prepared to take out an Advocate Commissioner from this Court to show that the way set apart does not form part of the partible property. In fact, learned counsel raised a contention that a portion of another pathway belonging to the appellants exclusively is being used for providing 12 feet wide pathway to the plots in item No.3. This submission is strongly opposed by the learned counsel for the **RSA.No. 387 of 2006 12** plaintiffs/respondents contending that there is no such pleading raised before the courts below in this regard. According to him, these contentions are being raised for the first time in a second appeal. 11. It is to be remembered that the suit for partition commenced in the year 2000 and even after 19 years, the final decree could not be passed due to objections by one set of defendants. Having regard to the facts and circumstances, I find no reason to prolong the litigation, especially when I find no substantial question of law arising in this second appeal. In the result, the appeal is dismissed. All pending interlocutory applications will stand dismissed. A. HARIPRASAD, JUDGE. amk