Preetha Abraham v. Varghese and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN** **FRIDAY, THE 1ST OCTOBER 2010 / 9TH ASWINA 1932** **RSA.No. 686 of 2010() --------------------AS.72/2008 of II ADDL.DISTRICT COURT,ERNAKULAM OS.208/1996 of SUB COURT, MUVATTUPUZHA ....................** ## **APPELLANT/APPELLANT/ADDL.5TH DEFENDANT:** **----------------------------------------------------------** **PREETHA ABRAHAM, D/O.ABRAHAM, AGED 25 YEARS, THOTTUPURATHU HOUSE, KOOTHATTUKULAM VILLAGE MUVATTUPUZHA TALUK, REP. BY HER POWER OF ATTORNEY HOLDER, SUNNY MARKOSE, S/O.MARKOSE, AGED 40 YEARS, PUTHUKKATTIL HOUSE, MULAKKULAM SOUTH, KOTTAYAM (DIST).** **BY ADV. SRI.GEORGE SEBASTIAN** **RESPONDENT(S)/RESPONDENTS/PLAINTIFF & ADDL.DEFENDANTS 2 TO 4 & 6:** **-----------------------------------------------------------------** **1. VARGHESE, S/O.ULAHANNAN, AGED 57 YEARS, THOTTUPURATHU HOUSE, KOOTHATTUKULAM KARA, KOOTHATTUKULAM VILLAGE, MUVATTUPUZHA TALUK. PIN-686662** **2. LEELAMMA ABRAHAM, W/O.LATE ABRAHAM, AGED 52 YEARS, THOTTUPURATHU HOUSE, KOOTHATTUKULAM, KOOTHATTUKULAM VILLAGE, MUVATTUPUZHA TALUK. PIN-686662** **3. DEEPA SUNNY, W/O.SUNNY, AGED 30 YEARS, PUTHUKKATTIL HOUSE, MULAKKULAM SOUTH, KOTTAYAM DISTRICT. PIN-686610** **4. SUNITHA BENZ, W/O.BENZ, AGED 28 YEARS, PULPARAYIL HOUSE, KAKKOOR (PO), ERNAKULAM DISTRICT. PIN-673619** **5. PRATHEESH ABRAHAM, S/O.ABRAHAM, AGED 23 YEARS, THOTTUPURATH HOUSE, KOOTHATTUKULAM, KOOTHATTUKULAM VILLAGE, MUVATTUPUZHA TALUK. PIN-686662** **ADV. SRI.H.SIVARAMAN FOR R1 SRI.MATHEW CHERIAN FOR R1** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **ORDER IN I.A.NO.1461/2010 IN R.S.A.NO.686/2010** **DISMISSED.** **01.10.2010** **SD/- S.S.SATHEESACHANDRAN, JUDGE** **//TRUE COPY//** **P.A. TO JUDGE** ## **S.S.SATHEESACHANDRAN, J. ------------------------------R.S.A.NO.686 OF 2010 (F) ----------------------------------Dated this the 1[st] day of October, 2010** ## **J U D G M E N T** The additional 5[th] defendant in O.S.No.208 of 1996 has filed this appeal. The above suit was one for partition and injunction, which was instituted by the 1[st] respondent. A preliminary decree was passed in the suit allotting one half of the plaint property in favour of the 1[st] respondent/plaintiff negativing the contentions raised by his brother, the 1[st] respondent, who alone was in the party array initially, but, after his death, his wife and children were brought in as his legal representatives as additional respondents 2 to 6. The suit decreed earlier was challenged in appeal by the additional 5[th] defendant and then setting aside the decree and judgment the case was remitted. The suit was again decreed. The present appellant, then, moved an appeal against that decree with a petition to condone delay of 363 days. That delay petition being dismissed, her appeal was also rejected. The Second appeal is preferred against the orders so passed by **R.S.A.NO.686/2010** **2** the lower appellate court. 2. Though some doubts still persist over the entertainability of a second appeal from an order passed over the rejection of the appeal on dismissal of a petition to condone delay, in as much as whether such order would amount to a decree, and of its merger with the decree passed by the trial court, in view of the divergent opinions given by the Apex Court in **Chandi Prasad v. Jagdish Prasad (2004 (3) KLT 654 (SC)) and Shyam Sundar Sarma v. Pannalal Jaiswal (2005 (1) KLT 198 (SC))** , I entertain this appeal as the controversy thereof still remain to be resolved. 3. I heard the counsel on both sides. The learned counsel for the appellant submitted that without considering the merit of the case pleaded for condonation of delay, referring to a previous order, the lower appellate court dismissed the delay condonation petition and also rejected the appeal. Contending that there was no application of mind and, further, no **R.S.A.NO.686/2010** **3** opportunity was extended to the appellant to substantiate the cause shown by her for condoning the delay, the learned counsel requested for setting aside the orders and remitting the case for fresh enquiry on the delay petition. On the other hand, the learned counsel appearing for the 1[st] respondent/plaintiff emphasising that seventeen adjournments had been given on the petition filed to condone delay contended that there is no merit in the present appeal and it is intended only to protract and prolong the litigation and, thus, denied the 1[st] respondent the fruits of the decree by completion of the proceedings of the case. 4. The order passed by the court below on the petition to condone delay refers to a previous order of the court on 2.2.2010. The learned counsel for the appellant adverting to the reference so made has argued before me that in the previous order dated 2.2.2010 as well, there was no consideration of the question of delay canvassed by the appellant. The order passed on 2.2.2010 is quoted in the appeal memorandum presented. It could be seen from that order that the court below taking note **R.S.A.NO.686/2010** **4** that the final decree proceedings are going on and the Commissioner deputed by the court had already conducted inspection over the property to have a division thereof, opined that no purpose will be served in keeping the appeal pending. What is reflected by that order is only the concern of the court to decide the delay condonation petition at the earliest. The counter affidavit filed by the 1[st] respondent/plaintiff would also indicate that the petition to condone delay was adjourned from time to time on the various representations made by the appellant that the matter is settled and for reporting the same. But still, as no settlement was effected, it seems, the court, taking into account the continuation of the final decree proceedings, thought it fit to expedite the disposal of the delay condonation petition. That was referred to when the petition came up again especially when the counsel for the appellant/petitioner remained absent. Reference to the previous order dated 2.2.2010 would only indicate that the order passed in the delay petition was one of dismissing it for default, and not on merits. Having regard to the facts and circumstances **R.S.A.NO.686/2010** **5** involved as disclosed by the counter affidavit filed by the 1[st] respondent, which indicate of the series of adjournments given on the petition, I find no impropriety or illegality in the order passed by the court below in dismissing the petition for delay. There is no merit in the appeal, and it is dismissed. **S.S.SATHEESACHANDRAN JUDGE** prp **R.S.A.NO.686/2010 6**