Suresh Kumar, Chandramangalam Veedu, Njalbagom Muri Kaviyoor Village, Pathanamthitta District vs Vijyakumari and Others

Justice Thomas P. Joseph

The second appeal arises from the judgment and decree of learned District Judge, Pathanamthitta in A.S. No. 49 of 1999. That appeal arose from the preliminary decree for partition passed by the learned Sub Judge, Thiruvalla in O.S. No. 38 of 1997. The appeal was presented with a delay of 61 days. Learned District Judge held that the delay is not properly explained and dismissed I.A. No. 542 of 1999. Following that, the appeal was dismissed as time barred. The substantial question of law framed for a decision is

Whether the dismissal of the appeal by the lower appellate court consequent on dismissal of the delay condonation application seeking for condonation of delay of 61 days in filing the appeal when the last date to file appeal fell due during mid summer vacation and the appeal, which ought to have been filed on the re-opening day, viz., on 22.5.1999, was filed on 4.6.1999, after 11 days of re-opening of courts is sustainable when the dismissal on such technical ground shuts out opportunity for the appellant to have his case considered even by the first appellate court?

It is argued by the learned counsel for the appellant/2nd defendant that the delay involved in filing the appeal is of 61 days and that has been explained.

The learned counsel for the respondents 1 and 4 contends that though the delay involved is of 61 days it was to be explained but not done and in the circumstances, dismissal of the application for condonation of the delay is justified.

The trial court passed the preliminary decree on 19.11.1998 and as the learned counsel submits, appellant applied for a copy of the judgment and decree on 29.11.1998. It is submitted that the copy of judgment and decree were delivered to the appellant on 05.04.1999. The summer vacation for the civil courts started on 09.04.1999. The courts re-opened on 22.05.1999. The appeal was presented before the learned District Judge on 04.06.1999.

The trial court disposed of the suit on 19.11.1998 and it was only on 29.11.1998, that the application for copy of judgment and decree was preferred. Thus, nine (9) days is lost for the appellant in filing the appeal. Even otherwise, the copy of judgment and decree were delivered to the appellant on 05.04.1999, while the summer vacation commenced only on 09.04.1999. Therefore, the time for filing the appeal expired before the closing of the courts for summer vacation on 09.04.1999. Hence the appellant was expected to explain, notwithstanding that from 09.04.1999 to 22.05.1999 it was summer vacation, the delay in filing the appeal until 04.06.1999.

Then the next question is whether that delay is properly explained? In the affidavit in support of I.A. No. 542 of 1999 it is stated that the appellant''s father who was aged and sick was hospitalised and was undergoing treatment. The sisters of the appellant are married and staying in their matrimonial home at different places. Appellant alone was available to look after the aged and sick father who could not move from his bed. In the circumstances, appellant was not able to make arrangements to file the appeal.

Though it is contended by the learned counsel for the respondents 1 and 4 that the delay is not properly explained, it is seen that the reason which prevented the appellant from filing the appeal on time is stated. I must also notice that the delay involved is only 61 days. There is no reason to think that the delay was willfully caused since by that, the appellant did not stand to gain as there was the possibility of the appeal being dismissed as time barred (as it really happened).

Having heard the learned counsel on both sides I am inclined to think that the delay is properly explained. The substantial question of law is answered as above. Resultantly the second appeal is allowed as under:

i. Order dated 27.03.2001 passed by the learned District Judge, Pathanamthitta on I.A. No. 542 of 1999 in A.S. No. 49 of 1999 is set aside.

ii. Judgment and decree of the learned District Judge in A.S. No. 49 of 1999 are set aside.

iii. I.A. No. 542 of 1999 in A.S. No. 49 of 1999 is allowed.

iv. A.S. No. 49 of 1999 is remitted to the court of learned District Judge, Pathanamthitta for hearing the appellant under Order XLI, Rule 11 of the Code of Civil Procedure.

v. The appellant shall appear in the court of learned District Judge, Pathanamthitta on 04.09.2012. To avoid delay in the service of notice, respondents also could appear before the learned District Judge on that day, so that, they can appear in the appeal in case learned District Judge decides to admit the appeal.

vi. In case any of the respondents does not appear on 0.4.09.2012 notice shall be issued to such respondents.

All pending interlocutory applications will stand dismissed.