Dismissed

Madhavan Velappan v. Arogya Mary

Kerala HC5 Nov 2013OP(C)/3707/2013

Case brief

AI extract

What is this about?

High Court Kerala disposed of a petition challenging the District Court's rejection of an application to condone a 297-day delay in filing a civil appeal. The High Court rejected the petitioner's claim of cardiac illness due to lack of evidence and dismissed the petition.

What did the court decide?

The petition was dismissed; the appeal to condone delay was rejected; the trial court was directed to dispose of the suit within six months.

Madhavan Velappan Vs Arogya Mary — Execution and Attachment | Kerala HC (2013)

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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 P.N.RAVINDRAN

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TUESDAY, THE 5TH DAY OF NOVEMBER 2013/14TH KARTHIKA, 1935

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OP(C).No. 3707 of 2013 (O)

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(ORDER IN I.A.NO.282/2012 IN CMA 17/2013 OF DISTRICT COURT, TRIVANDRUM)

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PETITIONER/DEFENDANT/JUDGMENT DEBTOR:

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MADHAVAN VELAPPAN, AGED 57 YEARS S/O.MADHAVAN, SREEPADMAM, VILIVATTOM VILLAGE THRISSUR, FROM KUNNATHUVILAKOM VEEDU, POZHIYOOR DESOM KARODE VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM.

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BY ADV. SRI.T.K.ANANDA KRISHNAN

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RESPONDENT/PLAINTIFF/DECREE HOLDER:

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1. AROGYA MARY, AGED 31 YEARS D/O.ELASAMMA, KUNNTHUVILAKAM PURAYIDAM (J.J.BHAVAN) POZHIYOOR DESSOM, KARODE VILLAGE, NEYYATTINKARA THIRUVANANTHAPURAM.

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2. JOSE

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H/O AROGYA MARY KUNNTHUVILAKAM PURAYIDAM (J.J.BHAVAN) POZHIYOOR DESSOM, KARODE VILLAGE, NEYYATTINKARA THIRUVANANTHAPURAM.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 3707 of 2013 (O) ---------------------------

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1- TRUE COPY OF THE C.M.A. 17/2013 BEFORE THE DISTRICT COURT, THIRUVANANTHAPURAM.

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P2- TRUE COPY OF THE I.A.282/2013 BEFORE THE DISTRICT COURT, THIRUVANANTHAPURAM.

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P3- CERTIFIED COPY OF ORDER IN I.A.NO.282/2012 IN C.M.A.NO.17/2013 OF DISTRICT COURT, THIRUVANANTHAPURAM.

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RESPONDENT(S)' EXHIBITS: NIL

TRUE COPY

PA TO JUDGE

SCL.

P.N.RAVINDRAN, J.

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------------------------------O.P.(C).No.3707 of 2013

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Dated this the 5^th day of November, 2013

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JUDGMENT

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The petitioner is the plaintiff in O.S.No.117 of 2012 on the file of the Court of the Principal Munsiff of Neyyattinkara. The respondents are the defendants therein. The suit instituted by the petitioner is one for a permanent prohibitory injunction restraining the defendants from constructing a compound wall on the western side of the plaint 'B' schedule property so as to obstruct the right of easement over the plaint 'C' schedule pathway. Along with the plaint, he filed I.A.No.723 of 2012 for an interim order of injunction restraining the defendants from constructing a compound wall on the western side of the plaint 'B' schedule property so as to obstruct the right of easement over the plaint 'C' schedule pathway.

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The defendants entered appearance and opposed the application. After considering the rival contentions, the trial court dismissed the application for injunction by order passed on 16.3.2013. The plaintiff did not challenge the said order, but instead, long after the period of limitation expired, he filed C.M.A.No.17 of 2013 in the Court of the District Judge of Thiruvananthapuram along

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O.P.(C).No.3707 of 2013

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with I.A.No.282 of 2013 to condone the delay of 297 days in filing the appeal. The District Court after hearing both sides, dismissed it by Ext.P3 order passed on 9.10.2013. The said order is under challenge in this original petition.

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I heard Sri.T.K. Ananda Krishnan, learned counsel appearing for the petitioner. I have also gone through the pleadings and the materials on record. The petitioner has no case that he was unaware of the dismissal of I.A No.723 of 2012 by order passed on 16.3.2013. The case pleaded by him in the affidavit filed in support of the application to condone the delay is that he was laid up for more than a year on account of his cardiac problems and that there is no wilful default or negligence on his par in filing the appeal. He did not however produce any evidence in support of the said contention. The fact that the petitioner is a lawyer practising in the courts at Neyyattinkara, is not in dispute. He had presented the appeal in person. The application to condone the delay did not however contain any averments regarding the hospital where he had undergone treatment or the doctor who treated him. He did not also produce any documentary evidence to substantiate his contention that he was undergoing treatment for more than a year on account of cardiac

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O.P.(C).No.3707 of 2013

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problems. In such circumstances, I am of the considered opinion that no exception can be taken to the impugned order. In the absence of any explanation from the side of the petitioner to the long delay of 297 days in filing the appeal, the court below was, in my opinion, perfectly right in declining to condone delay in filing the appeal.

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The original petition fails and is accordingly dismissed, but with a direction to the trial court, where O.S.No.117 of 2012 is pending, to try and dispose of the suit expeditiously and in any event within an outer limit of six months from today.

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Sd/- P. N. RAVINDRAN, JUDGE.

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Scl.

Madhavan Velappan v. Arogya Mary

Case brief

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Madhavan Velappan v. Arogya Mary

Case brief

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