VELAYUDHAN Vs. JOSEPH

JUDGEMENT

(1.) The 5th defendant is the appellant in this Second Appeal. The suit out of which this arises was for eviction with arrears and future rent on foot of a pattomchit, Ext. A, dated 4.10.1077. The plaintiffs case was that the property belonged to one Kadutha Kochayyappan who leased it to Kunjan Thampi under Ext. A. The leasehold by successive transfers devolved, according to the plaintiff, on Paru Mathevi who was the wife of the 5th defendant and the mother of defendants 1 to 4. There are two items in the schedule attached to the plaint, the second being a building in the first. The 5th defendants case was that Kadutha Kochayyappan had nothing to do with the property and it belonged to one Tharayil Kunjayyappan who leased it to Ayyappan Kunjan on 15.10.1054. There was a sublease by Kunjan in the year 1070 to one Kunjan Kuttan. The sublessor assigned his leasehold interest subsequently to the sublessee. The interest of Kunjan Kuttan thus obtained devolved upon one Kunjipennu who in 1099 gave a lease of the property to the 5th defendant and in the year 1104 gave also a mortgage to him. It is in this way that the 5th defendant contends that he is in possession of the property. The connection between Ext. A, the lease to Kunjan Thampi, with the 5th defendant in the manner mentioned in the plaint as aforesaid was repudiated by the defendant. Upon these pleadings nine issues were settled of which 1 to 4, 6 and 8 are the following:-

(2.) Mr. Krishnamoorthi Iyer, learned counsel for the appellant in this court, contends that the court below should have acted upon the affidavit of Sri Gopalakrishna Prabhu, set aside the judgment of the Trial Court and remanded the case for fresh disposal. I cannot accede to that contention. In Krishna Iyer v. Lakshmanan (7 DLR Travancore-Cochin 201) at page 202, this court observed:

(3.) Mr. Krishnamoorthi Iyer then urged that the action of counsel of his client in the Trial Court in not having pressed these issues amounted in the circumstances to totally giving up of the entire defence which is beyond the competence of counsel. This is a point which has to be considered. If it is beyond the counsels competence to give up the case in this fashion it will be as though the case has not been given up and the court would be bound to consider the questions on their merits which has not been done. Mr. Abraham, learned counsel for the respondent, did not dispute that this question of counsels competency is of vital importance and should be considered by the court. He, however, submitted that the point not having been raised in the lower appellate court it is too late for the appellant to raise it here in second appeal. Under the circumstances and in view of the fact that the appeal was presented in 1950 before the decision of this Court and of the Supreme Court which were rendered in the years 1951 and 1954 respectively and in view of the practice that appears to have been prevalent of presenting affidavits in appellate courts challenging the record made by lower courts as to what transpired before them and particularly in view of the fresh point raised here which may give a totally different turn to the case I consider that I must use my discretion in the appellants favour, set aside the decree of the lower appellate court and send the case back to that court for fresh disposal after giving an opportunity to the appellant to raise the question of the competency of counsel to not press issues 1 to 4, 6 and 8. If the appellate court finds it beyond the counsels competency so to do, then, that court will consider the case on the merits independent of that conduct. The disposal by the lower appellate court is seen to be influenced by the concession made by counsel in the Trial Court which had not been sufficiently contradicted in the affidavit presented in appeal.