Philomina @ Salomi & Salomma Job and Joy Joseph v. Mary Job, Anniamma Job, Sisamma Job, Elisamma Job and Georgekutty @ Appachan Kunju (R.S.A. No.1122/2011)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **TUESDAY, THE 18TH DAY OF MARCH 2014/27TH PHALGUNA, 1935** ## **RSA.No. 1122 of 2011** **------------------------------** **A.S.NO. 47/2007 OF SUB COURT, CHERTHALA O.S.NO. 236/1999 OF PRICIPAL MUNSIFF COURT, CHERTHALA** **-------------------** ## **APPELLANTS/APPELLANTS/PLAINTIFFS:** **-----------------------------------------------------------** **1. PHILOMINA @ SALOMI & SALOMMA JOB, AGED 46 YEARS, D/O.JOB AND W/O.JOY JOSEPH, THEKKEVALYARA PUTHENVEEDU, THYKKATTUSSERY, CHERTHALA-688 528.** **2. JOY JOSEPH, S/O.JOSEPH,** - **THULUSSERIL, MUTTUCHIRA P.O., ERAVIMANGALAM KARA, MANJOOR VILLAGE, KOTTAYAM DISTRICT.** **BY ADVS.SRI.B.RAMACHANDRAN SMT.K.B.REKHA** ## **RESPONDENTS/RESPONDENTS/ADDITIONAL DEFENDANTS 2 TO 6:** **-------------------------------------------------------------------------------------------------** **1. MARY JOB, W/O.LATE JOB, THEKKEVALYARA PUTHENVEEDU, THYKKATTUSSERY, CHERTHALA-688 528.** **2. ANNIAMMA JOB, D/O.LATE JOB SANJEEVINI, THODIYOOR P.O., KARUNAGAPPILLY, KOLLAM DISTRICT, NOW WORKING AS TEACHER ST.MARY'S CENTRAL SCHOOL, PALLIYAKKARA, THIRUVALLA-689 101, PATHANAMTHITTA DISTRICT.** **3. SISAMMA JOB, D/O.LATE JOB, VARIKKASSERIL HOUSE, PIRAVAM P.O., ERNAKULAM DISTRICT-686 664.** **4. ELSAMMA JOB, D/O.LATE JOB, DALIYA GARDENCE, KACHAPPALLY ROAD, VYTTILA POST, COCHIN-682 019.** **5. GEORGEKUTTY @ APPACHANKUNJU, S/O.LATE JOB, THEKKEVALYARA PUTHENVEEDU, THYKKATTUSSERY, CHERTHALA-688 528.** ## **BY ADV. SRI.ROY CHACKO** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. ## **P.BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - ## R.S.A. No. 1122 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18[th] day of March, 2014 ## **J U D G M E N T** While admitting this appeal, this Court had formulated the following substantial question of law: “When the court had powers to extend the period for payment of balance court fee payable on the appeal memorandum, even after expiry of the period of limitation for filing an appeal, whether the first appellate court was justified in not extending the period and dismissing the application for receipt of balance court fee payable and thereby dismissing the first appeal on the ground that as the counter claim decreed by trial court was not challenged, it would operate as res judi cata in challenging the decree in the suit.” 2. The suit was instituted by the appellants for declaration and consequential injunction. The second plaintiff is the husband of the first plaintiff and father of the first plaintiff had executed Exts. A1 and A2 documents **R.S.A. No.1122/2011** **-2-** gifting certain properties to the first plaintiff. Later on, by Ext.A5, the father cancelled the gift deed executed by him. The plaintiffs challenged the cancellation deed on the ground that the gift had been accepted and they have been in enjoyment of the properties from the time of the execution of the gift deed. It is also pointed out that the donor had only retained the life interest over the plaint schedule property and it was in that capacity, he had continued to be in possession of the properties after execution of the gift deed. 3. The defendants resisted the suit by pointing out that the allegations in the plaint are not true and that plaintiffs have no possession over the properties as per the gift deed said to have been executed by the father of the first plaintiff. It was pointed out by the defendants that in order to save the properties from being proceeded against in execution of a decree, he was asked to execute a Will in favour of the first plaintiff with an assurance of retaining **R.S.A. No.1122/2011** **-3-** right for himself. Believing it to be so, he had executed the said document. He was given to understand that the two documents executed by him had no legal status. 4. During the pendency of the suit, the defendant died and the legal heirs were brought in the party array. The second defendant who was on the party array had adopted the same contentions as that of the first defendant and a counter claim was also filed by the defendants. 5. The trial court raised necessary issues for consideration. The evidence consists of the testimony of PWs 1 to 4 and had Exts. A1 to A9 marked from the side of the plaintiff. The defendants had DW1 examined and had Exts. B1 to B3 marked. Exts.C1 and C1(a) are Commissioners report. Exts. X1 series and X2 series are the third party exhibits. 6. On an appreciation of the evidence in the case, the trial court came to the conclusion that the contentions of the defendants are more probable and at any rate, there ## **R.S.A. No.1122/2011** **-4-** was no acceptance of gift by the plaintiff and accordingly, dismissed the suit and allowed the counter claim. 7. The plaintiffs preferred A.S.No.47 of 2007 before the lower appellate court against the decree of the trial court. Later on, they found that even though in the appeal memorandum, objection was taken to the decree in the counter claim, no court fee had been paid for the said relief. Accordingly, plaintiffs in the suit filed three interlocutory applications namely I.A.Nos. 2119/2009, 2120/2009 and 502/2009. I.A.No.502/2009 was filed under Section 151 of C.P.C. seeking to have the appeal memorandum amended to incorporate the payment of court fee for the courter claim. It is prayed that the court fee for the counter claim may be received. I.A.No.2119/2009 was filed for correcting the provisions shown in I.A.No.502/2009. I.A.No.2120/2009 was one under Order I Rule 10(2) of C.P.C. for impleading respondent Nos. 2 to 4. **R.S.A. No.1122/2011** **-5-** 8. The lower appellate court by a considered order dismissed all the three interlocutory applications and consequently finding that since there was no challenge to the decree in the counter claim, the appeal against the suit will not lie as it is barred by res judicata. Accordingly, the lower appellate court, after referring to the various decisions of the Apex Court, dismissed the appeal. It is against the said judgment and decree, this appeal has been filed before this Court. 9. The learned counsel appearing for the appellant contended that the lower appellate court was very harsh in dismissing the interlocutory applications though filed belatedly. Even in the appeal memorandum initially filed, there were objections taken to the decree in the counter claim and it was not as if that there was no challenge to the decree allowing counter claim. But due to inadvertence, necessary court fee for the challenge of decree in counter claim was omitted to be paid. **R.S.A. No.1122/2011** **-6-** 10. The learned counsel for the appellant pointed out that it was a composite appeal and it was conceded that sufficient court fee ought to have been paid as against the appeal from the decree in the counter claim. Whatever that be, even though the applications were belatedly filed, according to the learned counsel, the lower appellate court being the final court on facts ought to have given an opportunity to the plaintiff to urge his contentions and the matter ought to have been disposed of on merits. It is also pointed out that on merits also, it could be seen that the judgment and decree of the trial court cannot be sustained. Whatever that be, since the lower appellate court has not gone into the merits of the case, it caused considerable prejudice to the appellants since they have been deprived of an opportunity of having the matter agitated before the lower appellate court being the final court on facts. The learned counsel went on to point out that considering the nature of contentions and allegations, the nature of rights **R.S.A. No.1122/2011** **-7-** involved etc. an opportunity ought to have been granted to the appellant to agitate his case. 11. Sri. Roy Chacko, the learned counsel appearing for the respondents on the other hand very vehemently opposed the appeal and pointed out that it is trite that when there is suit and counter claim and decrees are passed in the suit and counter claim, if anybody is aggrieved, he has to file two appeals one against the decree in the suit and the other against the decree in the courter claim. It may be true that the appellants had mentioned in the appeal memorandum the grounds against the decree and counter claim decree also though in fact a separate appeal ought to have been filed against the decree in the counter claim. Even assuming that a composite appeal is maintainable, separate court fee ought to have been paid. In support of his contentions that when there is no challenge to the decree in the counter claim which have material bearing to the decree in the suit, an appeal against the decree against ## **R.S.A. No.1122/2011** **-8-** the suit alone will not lie. Reliance was placed on the decisions reported in **Thomas and Others** v. **Dr. Sudha and Others** [2010 (4) KHC 575], **Philip** v. **Kinhimohammed** [2006 (4) KLT 996], **A.Z.Mohammed Farooq** v. **State Government** [1984 KLT 346] and **A. Nawab John and Others** v. **V.N.Subramaniyam** [2012 (7) SCC 738]. 12. Sri. Roy Chacko, the learned counsel for the respondents, on the amendment that was sought for in the lower court, contended that it was highly belated and that there was no justification in seeking such an amendment. In fact, the learned counsel pointed out that the amendment sought for was after the final hearing in the appeal when it was pointed out that there was no appeal against the decree in counter claim. There was no bonafide the claim made by the appellant that there was inadvertent omission in not filing an appeal as such against the counter claim. At any rate, the learned counsel pointed out that relying on the ## **R.S.A. No.1122/2011** **-9-** decisions reported in **Muni Lal** v. **Oriental Fire & General Insurance Co. Ltd. And Another** [1996 (1) SCC 90] and **Chander Kanta Bansal** v. **Rajinder Singh Anand** [2008 (5) SCC 117], it was not a matter of course to allow the amendment. Unless it is shown that the omissions had occurred in spite of exercising due diligence on the part of the person concerned, an amendment cannot be allowed. The relief of amendment is more strict after the recent amendment of Civil Procedure Code and it is viewed very seriously. The learned counsel went on to point out that the court below could not be found fault with in law for declining to grant amendment as prayed for. According to the learned counsel, there is no merits in the present appeal and it is only to be dismissed. 13. After giving anxious consideration to various aspects, it is felt that there is considerable force in the submissions made by the learned counsel for the appellant. The suit and the counter claim was jointly tried and the suit **-10-** ## **R.S.A. No.1122/2011** was dismissed and the counter claim was allowed. As rightly pointed out by the learned counsel for the respondents, based on the decisions mentioned above, if the plaintiff was aggrieved by the decree in the suit, he had to file an appeal against that decree and so also if he is aggrieved by the counter claim decree, he had to file an appeal against that decree also. A counter claim is an independent suit as such and separate decree is passed in the counter claim. May be that, the suit and the counter claim are tried jointly. They are two distinct and separate proceedings. 14. However, one cannot omit to note that it is not as if that the appellants are totally oblivious of necessity to challenge the counter claim decree. In the appeal memorandum against the decree in the suit, they had complained about the decree in the counter claim also though there was omission in paying sufficient court fee. Appeal could be treated as a composite one. ## **R.S.A. No.1122/2011** **-11-** 15. However, there is considerable force in the submissions made by Sri. Roy Chacko that it is inconceivable that it is by an inadvertent omission that the the court fee was not paid for the appeal against the decree in the counter claim. Even assuming that a composite appeal is maintainable, as rightly pointed out by the learned counsel for the respondents that separate court fee has to be paid. 16. But one must notice that the lower appellate court is the final court on facts and the scope of interference in second appeal is considerably restricted. The second appeal is entertained only when there is substantial question of law. 17. After having gone through the records in the case, it is not as if that the appeal filed before the lower appellate court is totally frivolous. There seems to be something to be heard and decided. At any rate, the court below ought to have allowed the amendment, received the court fee and should have heard the matter on merits in order to ensure that parties are not denied justice. ## **R.S.A. No.1122/2011** **-12-** 18. The current trend is to have the matter decided on merits and disposed of. In the case on hand, the issue related to the acceptance of the gift deed and the power of the donor to cancel the deed at the belated stage. There was considerable evidence adduced by the plaintiff to show that the gift has been acted upon and the possession of the donor was only because of the reservation of the rights in his favour i.e., life estate and not in derivation of rights of the donees. Whatever that be, this is an aspect to be gone into and a decision need to be taken. 19. This Court is unable to accept the findings of the court below since the interlocutory applications are belated and the appellants are not entitled to the reliefs as prayed for in the interlocutory applications. In fairness, the court below ought to have allowed the interlocutory applications may be on costs to compensate any loss caused to the respondents. ## **R.S.A. No.1122/2011** **-13-** 20. Considering the totality of the circumstances, it is felt that an opportunity ought to be given to the appellants to agitate their grievance before the lower appellate court which has already noticed is the final court on facts. For the laches, they should make good the loss caused to the respondents. 21. The appellants pay a sum of 15,000/- (Rupees₹ Fifteen Thousand only) as costs to the respondents through their counsel within a period of two weeks from today. If the amount is paid, the appeal will stand allowed and the parties shall appear before the lower appellate court on **08.04.2014** and the lower appellate court shall take the appeal on file after receiving the additional court fee i.e. the court fee paid for challenge against the decree in courter claim and dispose of the appeal on merits and in accordance with law within a period of **four months** from the date of re-opening of the courts after summer vacation. ## **R.S.A. No.1122/2011** **-14-** Forward a copy of this judgment to the court concerned forthwith. Sd/- **P.BHAVADASAN JUDGE** ds //True Copy// P.A. To Judge