SISUPALAN NAIR Vs. STATE OF KERALA

JUDGEMENT

(1.) The first respondent in A.S. No. 233 of 2000 on the file of the 2nd Additional District Judge, Thiruvananthapuram is the petitioner in both these Writ Petitions. W. P. (C) 35195 of 2003 is filed challenging an order passed by the learned District Judge, by which he had allowed I. A. No. 2668 of 2 002, a petition filed by the third respondent in the appeal to condone the delay of 17 months and 15 days in filing a memorandum of cross objection. W. P. (C) No. 35118 of 2003 is filed against an order passed by the court below by which the learned District Judge had admitted the memorandum of cross objection overruling the objections raised by the writ petitioner.

(2.) The writ petitioner along with the 5th respondent filed O. S. No. 2 35 5 of 1997 on the file of the IInd Additional Munsiff's Court, Thiruvananthapuram for declaration of title and also for a consequential injunction. His case was that he purchased the property while he was employed in the Territorial Army. According to the writ petitioner, since he was away from the place, he had executed a power or attorney in favour of the second respondent on 17/12/1991 which was subsequently revoked by him as per registered notice dtd. 12/11/1994. It is alleged that after the revocation of the power of attorney, the second respondent executed a sale deed in respect of the suit properties in favour of the fourth respondent who is none other than his own minor daughter, The Trial Court decreed the suit declaring the title and possession of the petitioner. The third respondent. represented by the fourth respondent filed an appeal as A. S. No. 233 of 2000 before the IInd Additiona1 Court, Thiruvananthapuram. In that appeal, the second respondent filed a memorandum of cross objection after the expiry of the period of limitation with a petition to condone the delay in filing the appeal. The writ petitioner filed objections to the delay petition, The learned District Judge allowed 'the petition to condone the delay and admitted the memorandum of cross objection. The petitioner filed O. P. No. 35688 of 2002 before this Court challenging those orders. This Court by judgment dtd. 11/6/2003 allowed the Original Petition, quashed the order passed by the lower appellate court in I. A. No. 2688 of 2002 and remanded that I. A. for fresh disposal. The learned District Judge again passed an order condoning the delay in filing the cross objection. W. P. (C) No. 35195 of 2003 is filed challenging that order.

(3.) When the cross objection came up for admission, the writ petitioner raised contention that the same is not maintainable in view of the fact that the appeal was filed on 14/12/2000 on payment of one third court fee and the balance court fee was not paid within 15 days from the date of the order admitting the appeal. It was contended that the balance court fee was paid only on 27/9/2002 without any application to enlarge the time or condoning the delay for payment of the balance court fee. It was contended that since the balance court fee was deposited after a lapse of 21 months, there was no payment of court fee and hence there was no properly constituted appeal. It was contended that since there was no properly constituted appeal, no question of entertaining the memorandum of cross appeal in that defective appeal arises. It was also contended that the matter in controversy in the cross objection is a dispute between the writ petitioner and the second respondent who are corespondents in the appeal and the appellants have no case or common contention along with the appellant in the cross appeal and hence the cross appeal itself is not maintainable. The court below overruled those objections and admitted the cross appeal also. In the order it was found that since no direction was issued to the appellant in the appeal to pay the balance court fee and since the balance court fee was received, there is a valid appeal on the file and hence the memorandum of cross objection is also maintainable. W. P . (C ) 35228 of 2003 is filed challenging the order passed by the learned Judge admitting the cross objection.