Seethu vs Pijina Moolya

Ravi V. Malimath, J.—The appellant-Plaintiff filed a suit for partition of plaint ''A'' schedule property. By virtue of the preliminary decree dated 20.12.2002, the properties were divided into five shares and one such share was allotted to the Plaintiff. Aggrieved by the same, the Plaintiff filed FDP proceedings in FDP No. 39/2005 for division of plaint ''A'' schedule property. A Court Commissioner was appointed. The properties were divided into five equal shares and the Court Commissioner filed the report on 29.05.2006. The Plaintiff filed no objection along with a memo through her husband praying to allot the yellow portion of the property as shown in the sketch. The same was objected to by the defendants contending that the report is improper. Therefore, the Commissioner was redirected to effect partition between the parties in respect of plaint A'' schedule property. Accordingly, a second report along with a sketch was filed by the Commissioner on 27.08.2007. In terms of the memo filed by the Plaintiffs counsel, the properties were allotted in terms of the said memo. Therefore, the Commissioner''s report was accepted on 10.09.2007 and ordered to draw a final decree. Aggrieved by the said order, the Plaintiff by changing the previous counsel, engaged the present counsel contending that the earlier counsel was not instructed to file a memo to allot the property. Subsequently, I.A. No. 3 was filed to reconsider the share allotted to the Plaintiff. That was also dismissed as well as the plea of the Plaintiff. Aggrieved by the said order, a first appeal was filed before the Senior Civil Judge, Karkala in R.A. No. 32/2008. There was a delay in filing the appeal. Consequently, an application to condone the same was filed. The first Appellate Court by the impugned order dismissed the application seeking condonation of delay in the filing the appeal thereby confirming the order of the trial Court. Aggrieved by the same, the Plaintiff is in appeal before this Court.

By order dated 09.04.2013, the following substantial question of law was framed.

"Whether both the Courts below have erred in law in accepting the Commissioner''s second report dated 27.08.2007, in the absence of consent by the appellant?"

The learned Counsel for the appellant submits that the substantial question of law requires to be reframed.

I have heard the learned Counsel on the same. Hence, the substantial question of law is refrained as under:-

"Whether the first Appellate Court was right in law in rejecting the application for condonation of delay?"

In support of the application seeking condonation of delay in filing the appeal, the appellant has stated in her affidavit as follows:

"I say that I have obtained certified copies of the order on 10.03.2008. I say that thereafter also I could not meet any counsel due to my ill health. I say that I am under bonafide belief that the lower court will allow my application filed under Section 151 of CPC"

On considering the same, the first Appellate Court was of the view that there is no material produced by the appellant to show that she was suffering from any ill-health. That 158 days of delay in filing the appeal has not been explained by the appellant. Except a stray statement that she could not meet her counsel due to ill-health, no other reason is forthcoming. Therefore, the first Appellate Court was of the view that there is absence of sufficient cause to condone the delay in filing the appeal.

On considering the same, I ''am of the considered view that the reasoning assigned by the Appellate Court is just and proper. No other reason has been assigned by the appellant to condone the delay in the filing the appeal. Hence, there is no error committed by the Appellate Court in rejecting the application.

It is necessary that not only cause but sufficient cause has to be shown whenever an application seeking condonation of delay is sought by the party. Hence, I ''am of the considered view that the first Appellate Court was justified in rejecting the application seeking condonation of delay.

Yet another reason assigned by the first Appellate Court is that the order of the trial Court was passed on 10.09.2007 in terms of the memo filed by the Plaintiffs counsel. After allotment of the shares by the trial Court, I.A. No. 3 was filed under Section 151 of CPC seeking to reconsider the shares allotted to the Plaintiff. The trial Court considered the same. The lower Court was of the view that there is no whisper made in the affidavit about the Plaintiff changing her previous counsel and as to why she has not filed any appeal against the order dated 10.09.2007. Therefore even if this affidavit is to be considered, the bonafides of the Plaintiff continues to remain in doubt.

In the normal circumstance, delay, per se, would be considered by the Courts in a liberal manner. In the present case, the Plaintiff filed an application seeking condonation of delay in filing the appeal based on a stray sentence that she could not meet her counsel and instruct him to file an appeal due to her ill-health. The Plaintiff has not produced any document in support of her contention. Even otherwise, merely making an allegation against the previous counsel does not constitute any sufficient cause to condone the delay.

Even otherwise, it is the case of the Plaintiff that her previous counsel has filed the memo without her consent. When no effort has been made by the Plaintiff to question such a conduct, I find no ground to accept any of the contentions advanced. Under the circumstances, even on merits, I ''am of the considered view that no relief could be granted to the Plaintiff. Therefore, the substantial question of law is answered by holding that the first Appellate Court was justified in rejecting the application seeking condonation of delay in filing the appeal. Consequently, the appeal being devoid of merit is dismissed.