KUNJUNNI JANARDHANAN Vs. KUNJUNNI BHASKARAN

JUDGEMENT

(1.) This C.R.P. is directed against the order in I.A. No.147/97 in C.M.A. No.42/98 dated 19-1-2000 passed by the District Court, Alappuzha, The C.M.A. was preferred by the petitioner against the order in I.A. 1763/92 in O.S. 72/83 passed by the Munsiffs Court, Mavelikkara with the above petition to condone the delay of 397 days in filing the appeal.

(2.) The petitioner has contended that against the order in I.A. No.1763/92 he preferred C.R.P. No.347/96 before this Court as per wrong legal advice given by his counsel and that C.R.P. was dismissed holding that the order passed by the Munsiffs Court cannot be said to be erroneous, perverse or unreasonable and the revision petition is of no merits, by order dated 12-2-1996. Subsequently on proper advice from another counsel it was revealed that no revision will lie against the order passed by the lower Court and the petitioner can prefer appeal before the appellate Court. Therefore, appeal was filed before the District Court with a petition to condone the delay in preferring the same, alleging that the delay occurred due to the wrong advice given by his counsel. The lower appellate Court dismissed the I.A. filed under Section 5 of the Limitation Act to condone the delay finding that there is no sufficient reason to condone the delay in filing the appeal. Hence this revision is preferred before this Court challenging the order passed by the lower appellate Court.

(3.) A preliminary decree for partition was passed in O.S. 72/83 on 26-7-1984. Subsequently the 1st defendant died on 9-11-1987. The respondent-2nd defendant in the suit filed I.A. No.684/92 to amend the preliminary decree in respect of some items of properties in the decree. Thereafter he filed I.A. 1763/92 to implead the legal representatives of the 1st defendant as additional respondents 3 to 8 in I.A. 684/92. The plaintiff1st respondent in the I.A. contended that the deceased 1st defendant has not left any legal representatives since he died unmarried and issueless and therefore, respondents 3 to 8 cannot be impleaded as his heirs and legal representatives. The trial Court took evidence in the matter and after enquiry allowed I.A. 1763/92 to implead respondents 3 to 8 in I.A. 684/92 as legal representatives of deceased 1st defendant as per order dated 20-11-1995. The plaintiff preferred C.R.P. No.347/96 before this Court and this Court dismissed the C.R.P. on merits by order dated 12-2-1996 at the admission stage itself holding that the C.R.P. is of no merits. It is thereafter the C.M.A. is filed before the lower appellate Court challenging the order in I.A. 1763/92 with the above petition to condone the delay of 397 days under Section 5 of the Limitation Act.