Allowed

Sadanandini Channatti v. Sudharma

Kerala HC19 Jun 2012RSA/1289/2010

Case brief

AI extract

What is this about?

The High Court allowed a second appeal, holding that the lower court erred in dismissing an application to condone delay on merit in the absence of the appellant. The order was set aside and remitted for decision after hearing the parties.

What did the court decide?

The judgment and decree in A.S.No.68 of 2008 and the order on I.A.No.691 of 2008 are set aside; the application is remitted for decision after hearing.

Sadanandini Channatti Vs Sudharma — Service and Employment | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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TUESDAY, THE 19TH DAY OF JUNE 2012/29TH JYAISHTA 1934

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RSA.No. 1289 of 2010 ( )

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AS.68/2008 of ADDL.DISTRICT COURT-I,MAVELIKKARA OS.293/2000 of MUNSIFF COURT,HARIPAD

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APPELLANT(S)/APPELLANT/DEFENDANT::

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SADANANDINI CHANNATTI, AGED 70 YEARS, D/O.NANI CHANNATTI, PADAVUNKAL PADEETTATHIL CHINGOLI MURI, CHINGOLI VILLAGE.

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BY ADV. SRI.B.RENJITHKUMAR

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RESPONDENT(S)/RESPONDENT/PLAINTIFF::

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SUDHARMA, AGED 40, D/O.CHELLAMMA, PERATHU CHIRAYIL, CHINGOLI MURI, CHINGOLI VILLAGE.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P. JOSEPH, J.

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R.S.A. No.1289 of 2010

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Dated this the 19^th day of June, 2012. JUDGMENT

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Heard. Admit.

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Following substantial question of law is framed:

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“Whether the first appellate court was justified in deciding I.A.No.691 of 2008 for condonation of the delay on merit in the absence of the appellant and consequently dismissing A.S.No.68 of 2008?”

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Respondent is served but, there is no response.

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In view of the decision I propose to take and as learned counsel for appellant also submits, it is not necessary to call for records of the case to decide this appeal.

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The Second Appeal arises from the judgment and decree of learned I Additional District Judge, Mavelikkara in A.S.No.68 of 2008 which was in challenge of the judgment and decree of learned Munsiff, Harippad in O.S.No.293 of 2000.

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RSA No.1289/2010

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Appellant/defendant filed A.S.No.68 of 2008 with a delay of 542 days and filed I.A.No.691 of 2008 to condone the delay stating reasons. Respondent opposed the application. There was a connected appeal - A.S.No.86 of 2008 filed by the appellant, also after the prescribed time, obviously with an application to condone the delay. Learned counsel submits that the application to condone the delay in that appeal was allowed and the appeal was admitted for hearing.

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When I.A.No.691 of 2008 came up for hearing, appellant and counsel were absent and hence learned Additional District Judge, recording absence of the appellant, held that no evidence is adduced to prove the statements in support of the application, objection raised by the respondent is accepted and consequently I.A.No.691 of 2008 is dismissed. Dismissal of A.S.No.68 of 2008 as time barred followed. Hence this Second Appeal in challenge of the judgment and decree of learned I Additional District Judge in A.S.No.68 of 2008. In this appeal, appellant also challenges the correctness of the order on I.A.No.691 of 2008.

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In the absence of the appellant and counsel, learned Additional District Judge could not have dismissed I.A.No.691 of 2008 on merit. The application could only be dismissed for default. But, having regard to the facts and circumstances of this case where the learned Additional District Judge has proceeded to dismiss the appeal after accepting the objection of the respondent and consequently the appeal itself is dismissed as time barred, I am inclined to

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RSA No.1289/2010

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interfere in the matter. I must notice that in the connected appeal - A.S.No.86 of 2008 filed by the appellant after the prescribed time the application to condone the delay was allowed and the appeal is posted for hearing.

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In the absence of the appellant and counsel, learned Additional District Judge could not have dismissed I.A.No.691 of 2008 on merit against the appellant. The dismissal ought to have been for default.

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The substantial question of law framed is answered accordingly.

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Resultantly, this Second Appeal is allowed as under:

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i. The order on I.A.No.691 of 2008 and consequently, judgment and decree in A.S.No.68 of 2008 of the court of learned I Additional District Judge, Mavelikkara are set aside.

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ii. I.A.No.691 of 2008 is remitted to the court of learned I Additional District Judge, Mavelikkara for decision after hearing the parties.

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iii. Appellant shall appear in the court of learned I Additional District Judge, Mavelikkara on 29.06.2012.

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All pending interlocutory applications will stand dismissed.

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THOMAS P.JOSEPH, Judge.

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cks

Sadanandini Channatti v. Sudharma

Case brief

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Sadanandini Channatti v. Sudharma

Case brief

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