JOSEPH ALIAS COONI Vs. ALEXANDER

JUDGEMENT

(1.) The first of these cases is against the judgment of the court of the Subordinate Judge of Kottayam in a suit for recovery of possession on the strength of an oral lease or on title in the alternative. The Trial Court dismissed the suit; and the lower appellate court decreed the same. The defendant has filed the second appeal. The second case arises in execution of the decree of the appellate court in the same suit; and the prayer of the defendant judgment debtor for stay of execution has been repelled by both the lower courts. Consequently, the defendant has filed this second appeal as well.

(2.) The judgment of the learned Subordinate Judge, which is appealed against in S. A. No. 992 of 1962, is very unsatisfactory, especially in view of the fact that the Subordinate Judge has reversed the decision of the Munsiff. I have had both the judgments carefully read out to me; and I find that the Munsiff has considered every aspect of the case in a fairly reasonable manner, whereas, the judgment of the Subordinate Judge is only superficial. The questions involved in the case are whether the exchange of properties pleaded by the defendant is true, whether the oral lease set up by the plaintiff is established; and if neither of them is established, whether the plaintiff has established subsisting title. The first two are mainly questions of fact and the last one is a mixed question of fact and law. In view of the main questions being questions of fact, I do not think it is proper that I consider those questions in second appeal as a first appellate court on the evidence in the case. That means I have to set aside the reversing judgment of the Subordinate Judge and remand the appeal to the lower appellate court for fresh disposal. I may also add that the observation of the Subordinate Judge that

(3.) At this stage, the learned counsel of the appellant brings to my notice some other facts and requests me to reopen another question as well to be considered by the lower appellate court. The appeal before the lower appellate court was filed on 3rd February 1956 and the same was dismissed for non payment of court fee on 6th March 1956. More than six months thereafter, two petitions were filed, one for restoring the appeal to file and the other for excusing the delay in filing the restoration petition. Notice was ordered on both the petitions; but the notices were returned with endorsements that the respondent (the appellant before me) refused to receive them. On third March 1959 the petitions were allowed and the appellant (the respondent before me) was directed to pay court fee by the 10th of the month. He applied for extension of time, which was also allowed; and ultimately, he paid court fee only on 23rd March 1959, i.e., more than three years after the dismissal of the appeal for non payment of court fee. On 22nd July the appellant before me filed an application for reviewing the order of restoration alleging, inter alia, that he had no notice of the petitions. The review petition was however dismissed; and the appellant tried a civil revision petition before this Court, which was also dismissed in limine. The learned counsel of the appellant urges that this Court might now set aside the order restoring the appeal.