Purushothaman and Others vs Chellamma and Others

Thomas P. Joseph, J.—The Second Appeal arises from the judgment and decree of the First Additional District Court, Mavelikara in A.S. No.65 of 2009 dismissing that appeal as time barred for the reason of dismissal I.A. No.554 of 2009 to condone the delay. That appeal arose from the preliminary decree for partition passed by the Munsiff''s court, Harippad in O.S. No.273 of 2002. Appellants-defendants 1, 2 and 9 challenged that preliminary decree on various grounds. Since there was a delay of 1136 days in filing the appeal, appellants filed I.A. No.554 of 2009. On that application the 1st appellant was examined as P.W.1. Contesting respondents proved Exts.B1 to B3. The first appellate court found that the reasons stated for condonation of delay are not true, the inordinate delay is not explained and consequently dismissed I.A. No.554 of 2009. That followed dismissal of the appeal as time barred.

It is contended by the learned counsel for the appellants that the delay is properly explained through the evidence of P.W.1. It is also submitted that the first appellate court ought to have shown the discretion in the matter of condonation of delay in favour of the appellants.

The learned counsel for the contesting respondents has opposed the prayer.

As per Section 5 of the Limitation Act delay could be condoned only when sufficient cause is shown. Going by the wordings of the said provision the discretionary power of the court to condone the delay arises only when sufficient cause is shown (See Ramlal, Motilal and Chhotelal Vs. Rewa Coalfields Ltd., ). Therefore it is obligatory for the appellants to have shown sufficient cause for not filing the appeal on time.

In I.A. No.554 of 2009 the prayer is to condone the delay of 1136 days. The reason for the delay is that the counsel engaged by the appellants in the trial court had agreed to file the appeal but that could not be done as the counsel expired. Apparently that may appear to be a justifiable reason for condonation of the delay. But the evidence of P.W.1 would stand against that. Though P.W.1 claimed that he was not in station, he admitted that other appellants were available at the station so that they could have enquired whether the counsel who had agreed to file the appeal had actually done so.

Assuming that the appellants were unaware of death of the counsel who appeared for them in the trial court, though P.W.1 stated that the appellants had not taken part in the final decree proceeding, it has come in evidence that respondents 1 to 3 had filed application on 20.07.2007 for passing the final decree and that application was vehemently contested by the appellants. P.W.1 claimed that he had not engaged a counsel to appear in the final decree proceeding but Exts.B1 to B3 disproved that. Exhibit B1 is the copy of the application filed by P.W.1 on 21.07.2010 through Advocate P.Aravindan to set aside the report and plan submitted by the Advocate Commissioner in the final decree proceeding. Exhibit B2 is the copy of proceedings paper on the application for passing the final decree which shows that appellants appeared in that proceeding in July, 2007 (which was even before death of the counsel who appeared for the appellants in the trial side). Exhibit B3 is the copy of objection P.W.1 preferred on 03.09.2010 to the application for passing the final decree. Therefore claim of the appellants that they had not taken part in the final decree proceeding is found to be untrue.

It is difficult to think that even while taking part in the final decree proceeding and vehemently opposing that application and the report and plan submitted by the Advocate Commissioner, appellants were unaware of death of their counsel in the trial court or that no appeal had been preferred against the preliminary decree. That plea of the appellants was rightly negatived by the first appellate court which I find no reason to interfere.

When a statement is made by appellants as the reason for condonation of delay and that statement is found to be not true, the question of exercising discretionary jurisdiction also does not arise.

In the above situation I am inclined to agree with the decision of the first appellate court that the inordinate delay in filing the appeal is not explained. On the other hand, it is revealed that the reasons stated by the appellants are not true. In view of that I do not find any substantial question of law involved in this appeal requiring a decision by this Court.

Second Appeal is dismissed.

All pending Interlocutory Applications will stand dismissed.