This appeal by the first defendant in a suit for partition is filed along with an application seeking condonation of delay of 30 days in filing the appeal. She says that she was suffering from back pain and was, therefore, prevented by sufficient cause from filing this appeal within the time prescribed. We would have been inclined to issue notice on that ground for condonation of delay. But we thought it appropriate to look into the merits of the appeal as well since nothing forbids a look into the merits in terms of Order XLI Rule 11 of the Code of Civil Procedure even while considering an application under Section 5 of the Limitation Act in connection with a first appeal under Section 96 CPC.
IN THE HIGH COURT OF KERALA
R.F.A. No. 268 of 2011
Decided On: 21.06.2011
Aliyamma Isow Vs. P.J. Joseph and Ors.
Hon'ble Judges/Coram:
T.B. Radhakrishnan and S.S. Satheesachandran, JJ.
1. This appeal by the first defendant in a suit for partition is filed along with an application seeking condonation of delay of 30 days in filing the appeal. She says that she was suffering from back pain and was, therefore, prevented by sufficient cause from filing this appeal within the time prescribed. We would have been inclined to issue notice on that ground for condonation of delay. But we thought it appropriate to look into the merits of the appeal as well since nothing forbids a look into the merits in terms of Order XLI Rule 11 of the Code of Civil Procedure even while considering an application under Section 5 of the Limitation Act in connection with a first appeal under Section 96 CPC. The plaintiff and defendants are siblings. They are the children of Joseph Joseph and Aleyamma Ouseph, both of whom are no more. The relationship between the parties and the fact that the suit property originally belonged to their parents are not in dispute. The plaintiff alleged that the first defendant had damaged the cow shed in the plaint schedule property and that she is liable for damages. The court below refused to grant any decree for damages. It granted a decree for partition of the suit property into shares, one to be allotted to the plaintiff. This alone is under challenge by the first defendant.
2. The plea of the first defendant before the court below was that during the life time of the parents, they had provided some land for the plaintiff and had also supported the construction of a building and therefore, he is not entitled to partition. There is no shred of material admitted in evidence, or at least placed before the court below, to show that the parents had given any item of property to the plaintiff.
3. Not only that, when the case was taken up for trial, the plaintiff reported, through counsel, that he has no evidence to adduce. Accordingly, the case was listed for the evidence of the defendant. On that day, the counsel appearing for the first defendant reported that the first defendant has no evidence. These facts that transpired in the court are recorded in paragraph 6 of the impugned judgment. There is also no controversy before us about the recording of those submissions by the trial court.
4. Learned counsel for the appellant argued making reference to Order XV Rule 3 and Order XVII Rule 3 CPC and the decisions of this Court in Divakara Panicker v. Pathumma, 1990 (2) KLT 266 and in Sebastian Jayaseelan v. Revathy Enterprises, MANU/KE/0888/2001 : 2001 (1) KLT 552 to contend that the impugned decree and judgment cannot be treated as delivered on merits, answering the contentions of the parties. He pointed out that the situation would have been, at the best, only equivalent to an ex parte decree and it could be interfered with even in jurisdiction under Order IX Rule 13 CPC. We are not impressed by this submission. The reasons are two-fold. Firstly, Order XV Rule 3 and Order XVII Rule 3 do not take care of a situation where the plaintiff or the defendant reports to court that he has no evidence to adduce. When an opportunity to adduce evidence is given and it is reported that the parties have no evidence to adduce, it is not a case of any party failing to adduce evidence, but only of inviting the court to give verdict on the pleadings. In the case in hand, the admitted situation is that the parties volunteered to say before the court that they have no evidence to adduce. This is a case of submission by the parties that the case may be decided without adducing evidence, meaning thereby, that they have no evidence to offer in support of their rival contentions. In such a situation, it is open to the court to proceed to decide on the admitted facts or indisputable facts, going by the pleadings.
5. As already noted, the relationship between the siblings and the evolution of title to the property sought to be divided are not in dispute. We, therefore, do not find any ground to ultimately entertain an appeal against the impugned decree. For the aforesaid reasons, having found that there is no merit in the appeal, we dismiss the application for condonation of delay. As a consequence, the appeal is also rejected. Refund court fee paid on the appeal.
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