Allowed

Prathapan v. Krisnamma

Kerala HC14 Jun 2012RSA/258/2012

Case brief

AI extract

What is this about?

Kerala High Court allowed second appeal. It set aside first appellate court's order dismissing application to condone appellate delay. The matter was remitted to the District Judge to decide on the delay application after allowing appellants an opportunity to adduce evidence.

What did the court decide?

Order dismissing condonation of delay application set aside; matter remitted for fresh decision after opportunity to adduce evidence.

Prathapan Vs Krisnamma — Pension and Retirement Benefits | 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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THURSDAY, THE 14TH DAY OF JUNE 2012/24TH JYAISHTA 1934

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RSA.No. 258 of 2012 () ----------------------

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A.S.No. 129/2011 of DISTRICT COURT,TRIVANDRUM IN OS.748/2006 of PRL.M.C.,TRIVANDRUM

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APPELLANTS/DEFENDANTS:

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PRATHAPAN AGED 54 YEARS S/O.KRISHNAN P.P NIVAS ARASUMMOODU ATTIPRA VILLAGE KULATHOOR P.O THIRUVANANTHAPURAM

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PUSHPALATHA AGED 49 YEARS P.P NIVAS, ARASUMMOODU, ATTIPRA VILLAGE, KULATHOOR P.O, THIRUVANANTHAPURAM

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BY ADVS.SRI.SANTHEEP ANKARATH

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SRI.SUMODH MADHAVAN NAIR

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RESPONDENT(S)/RESPONDENT/PLAINTIFF:

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KRISNAMMA AGED 46 YEARS, SREENI NIVAS, KOLLAMVILAKOM, ARASUMOODU, KULATHOOR P.O 695583 THIRUVANANTHAPURAM

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BY ADVS. SRI.A.MOHAMMED FAIZAL SRI.N.KRISHNA PRASAD

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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smv

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THOMAS P. JOSEPH, J. ====================== R.S.A. No. 258 of 2012

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====================== Dated this the 14^th day of June, 2012

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JUDGMENT

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Heard. Admit.

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The following substantial question of law are framed for a

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decision.

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Whether having regard to the facts and

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circumstances, the first appellate court has exercised the discretion in the matter of condonation of delay in the proper manner ?

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Whether having regard to the circumstances appellants are to be given opportunity to adduce evidence in support of the application for condonation of the delay ?

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Respondent appears through counsel.

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In the nature of the decision I propose to take, it is not necessary to call for records of the appeal.

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Learned Munsiff, Trivandrum passed an ex parte decree against the appellant in O.S. No. 748 of 2006 to surrender possession of plaint B schedule property after removing the concreted portion. Appellants challenged that judgment and decree. The appeal was presented with a delay of 515 days. They filed I.A.No.1574 of 2011 to condone that delay. The reason stated for the delay is financial

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R.S.A. No. 258 of 2012 2

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difficulty of the appellant to raise the required funds for filing the appeal and as their counsel in the trial court did not either appear on their behalf in the trial court or inform them about the posting date.

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The application was resisted by the respondent.

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Learned District Judge observed that appellants had not approached the lawyer and it was their responsibility to meet the lawyer and get information. The application was dismissed. The appeal also was dismissed. Hence this second appeal.

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Learned counsel has contended that dismissal of I.A. No.1574 of 2011 is not correct. It is submitted that appellants are prepared to adduce evidence before the first appellate court in support of their explanation for the delay. Learned counsel also submitted that since the appeal is dismissed though, for the reason of refusal to condone the delay, it has become difficult for the appellants to file an application in the trial court to set side the ex parte decree and judgment. Learned counsel requested that appellants may be given an opportunity either to adduce evidence in support of I.A. No.1574 of 2011 or to withdraw the appeal itself so that the bar of applying to set aside the ex parte decree would not apply.

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Learned counsel for the respondent submitted that no substantial law is involved requiring interference of this court with the judgment and decree of the first appellate court.

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Having regard to the circumstances above stated, I am

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R.S.A. No. 258 of 2012 3

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inclined to give an opportunity to the appellants, if they are so advised to adduce evidence in support of their explanation for the delay. Whether, the appeal should be withdrawn or not is a matter which the appellants are to decide and if requested, for the learned District Judge to pass orders on such request.

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The substantial question of law is answered as above.

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The second appeal is allowed as under:

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The order of learned District Judge, Trivandrum on I.A. No.1574 of 2011 (in A.S.No.129 of 2011) and the judgment and decree in that appeal are set aside.

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I.A. No.1574 of 2011 is remitted to the court of learned District Judge for fresh decision in the light of the observation made above.

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Parties shall appear before learned District Judge, Trivandrum on 26.06.2012.

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The interim order of stay granted by this court will remain in force until 26.07.2012 or till the learned District Judge dispose of the I.A.No.1574 of 2011 and/or appeal whichever is earlier.

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Sd/- THOMAS P.JOSEPH, JUDGE //True copy//

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P.A. To Judge

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smv

Prathapan v. Krisnamma

Case brief

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Prathapan v. Krisnamma

Case brief

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