Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH MONDAY, THE 29TH DAY OF JULY 2013 7TH SRAVANA, 1935 FAO.No. 98 of 2012 () ---------------------- ORDER/JUDGMENT IN AS 61/2010 of ADDITIONAL DISTRICT COURT, PALA DATED 14 02-2012 ORDER/JUDGMENT IN OS 356/2001 of MUNSIFF COURT, PALA DATED 05 11- 2002 APPELLANT(S)/9TH RESPONDENT/LEGAL REPRESENTATIVE OF PLAINTIFF: -------------------------------------------------------------- MANI AGED 4 YEARS S/O. THANKAPPAN, POOTHAKUNNEL HOUSE, ARUNAPURAM (WRONGLY TYPED IN the APPELLATE ORDER AS MARY P.T) BY ADV. SRI.P.C.HARIDAS RESPONDENTS/APPELLANTS-RESPONDENTS 2 TO 8 AND 9 TO 11/DEFENDANTS-LR'S OF THE PLAINTIFF: --------------------------------------------------------- 1. CHELLAMMA, AGED 5 YEARS W/O. KUMARAN VELIKKAKATHU HOUSE, PULIYANNOOR KARA DO VILLAGE-686575 2. MADHAVI BHASKARAN, AGED 6 YEARS W/O. BHASKARAN, UMMINIKKUZHIYIL HOUSE KUNNEL PEEDIKA BHAGAM, VELLOOR KARA AYARKUNNAM VILLAGE-686575 3. KARTHIANI, AGED 5 YEARS OLADATHIL HOUSE, KANIYAKKADU KARA, VALLICHIRA VILLAGE MEENACHIL TALUK-686575 4. SURESH, AGED 2 YEARS ARYAPPARAYIL HOUSE, ARUNAPURAM KARA PULIYANNOOR VILLAGE-686575 5. MANOJ ARYAPPARAYIL HOUSE, ARUNAPURAM KARA PULIYANNOOR VILLAGE-686575 6. KALYANI, AGED 7 YEARS POOTHAKKUNNEL ARUNAPURAM KARA, PULIYANNOOR VILLAGE-686575 7. DILEEP.M.B., AGED 2 YEARS MAPPILAKKALAYIL HOUSE, VALAVOOR KARA VALLICHIRA VILLAGE, MEENACHIL TALUK-686575 8. SOMAN, AGED 5 YEARS S/O. THANKAPPAN, PUTHUKUNNEL HOUSE, ARUNAPURAM-686575 9. BABU.P.T., AGED 4 YEARS S/O. THANKAPPAN, PUTHUKUNNEL HOUSE, ARUNAPURAM-686575 FAO.No. 98 of 2012 (”
10. MANOJ.T. @ KANNAN.P.T. S/O. THANKAPPAN, PUTHUKUNNEL HOUSE, ARUNAPURAM-686575 11. THANKAMANI.P.T., AGED 5 YEARS D/O. THANAKAPPAN, PUTHUKUNNEL HOUSE, ARUNAPURAM-686575 R1-R3 BY ADV. SRI.S.PRASANTH R1-R3 BY ADV. SRI.JAGADEESH LAKSHMAN RR10 BY ADV. SRI.BABY THOMAS RR10 BY ADV. SRI.GIGIMON ISSAC THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 29-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J.
========================= F.A.O.No.98 of 2012 ============================ Dated this the 29th day of July, 2013 JUDGMENT
The following substantial questions of law are framed for a decision in this appeal. (i) Is the lower appellate court right in entertaining the first appeal without considering the petition for condonation of delay in filing the appeal or condoning the delay? (ii) Is the first appellate court right in allowing the appeal without admitting the appeal or giving notice to the respondents? 2. This appeal arises from judgment dated 14.02.2012 in A.S.No.61 of 2010 of the Additional District Court, Pala.
3. The respondents 1 and 2/defendants 1 and 6, aggrieved by the ex parte, preliminary decree for partition in O.S.No.356 of 2001 of the Munsiff's Court, Pala preferred A.S.No.64 of 2008 in the Sub Court, Pala with I.A.No.613 of 2008 to condone the delay of 1982 days. The appeal and the application to condone the delay were made over to the Additional District Court, Pala where the appeal was re-numbered as A.S.No.61 of 2010. On 20.08.2011 the appeal was dismissed for default. Later, as per order dated 14.02.2012 on I.A.No.8 of 2011 filed by the respondents 1 and 2, the appeal was readmitted to the file. The same F.A.O.No.98 o”
2. day, learned counsel for the appellant submits, the appeal was allowed setting aside the preliminary decree and remitting the case to the trial court for fresh decision.
4. Learned counsel for the appellant contends that though learned Additional District Judge has allowed A.S.No.61 of 2010 by way of remand, it is without deciding I.A.No.613 of 2008 (filed in the Sub Court, Pala) for condonation of delay of 1982 days. That according to the learned counsel, is illegal.
5. Learned counsel for the respondents 1 and 2 also admits that it is without disposing of I.A.No.613 of 2008 that learned Additional District Judge has allowed A.S.No.61 of 2010.
6. When an appeal is preferred with an application to condone the delay, it is only a proposed appeal as indicated under Rule 3A(3) of Order 41 of the Code of Civil Procedure (for short, "the Code"). The appeal can be admitted only after condoning the delay. I must bear in mind that even if any of the respondents remained absent on I.A.No.613 of 2008 and if the learned Additional District Judge thought that the delay should be condoned, those respondents who remained absent on I.A.No.613 of 2008 were entitled to get notice of the appeal after its admission (if any). In the circumstance, learned Additional District Judge was not correct in allowing the appeal without disposing I.A.No.613 of 2008.
7. The learned counsel for the respondents 1 and 2 F.A.O.No.98 o”
3. submitted that this Court can decide I.A.No.613 of 2008 if necessary on terms of cost.
8. I am afraid, that is not a proper course since as aforesaid, without allowing I.A.No.613 of 2008, there could be no appeal on the file. In that view of the matter, judgment of learned Additional District Judge is liable to be set aside.
9. The substantial questions of law framed are answered accordingly. Resultantly this appeal is allowed as under: (i) Judgment dated 14.02.2012 in A.S.No.61 of 2010 of the Additional District Court, Pala is set aside. (ii) A.S.No.61 of 2010 is remitted to the learned Additional District Judge, Pala. (iii) Learned Additional District Judge is directed to dispose of I.A.No.613 of 2008 (filed in the sub Court, Pala) for condonation of delay in filing the appeal and in case that application is allowed, proceed in the matter of the appeal as provided under the law. (iv) Parties shall appear in the Additional District Court, Pala on 12.08.2013. All pending interlocutory applications will stand dismissed. Sd/- THOMAS P.JOSEPH, JUDGE Sbna True Copy P. A to Judge