Allowed

Kovummal Rajan v. Kappakkadavu Puzhayora Road Nirmana Committee

Kerala HC5 Jan 2017RSA/1084/2013

Case brief

AI extract

What is this about?

The Kerala High Court allowed a Second Appeal against the dismissal of an appeal as time-barred. The Court held that the lower appellate court failed to give the appellant a chance to produce medical evidence regarding his doctor's advice to avoid stress. The matter is remitted for a fresh decision on the stay application.

What did the court decide?

Set aside the impugned judgment and decree without interference in the trial court's judgment; remitted to the lower appellate court for a fresh decision on I.A. No.166/2011 after allowing evidence.

Kovummal Rajan Vs Kappakkadavu Puzhayora Road… — Civil Procedure and Limitation | Kerala HC (2017)

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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 B.KEMAL PASHA

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THURSDAY, THE 5TH DAY OF JANUARY 2017/15TH POUSHA, 1938

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RSA.No. 1084 of 2013 (D)

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AGAINST THE ORDER/JUDGMENT IN AS 185/2012 of SUB COURT, KANNUR DATED 05-03-2013

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AGAINST THE ORDER/JUDGMENT IN OS 491/2005 of PRINCIPAL MUNSIFF'S COURT, KANNUR DATED 27-02-2010

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APPELLANT/APPELLANT/ PLAINTIFF:

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KOVUMMAL RAJAN, AGED 58 YEARS S/O A. SHANKARAN, KOVUMMAL HOUSE, KAPPAKKADAVU, AZHEEKKAL (P.O), KANNUR DISTIRCT

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BY ADVS.SRI.ZUBAIR PULIKKOOL SRI.P.S.BINU

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RESPONDENTS/RESPONDENTS/DEFENDANTS:

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KAPPAKKADAVU PUZHAYORA ROAD NIRMANA COMMITTEE, REPRESENTED BY ITS CHAIRMAN, IBRAHIM, AGED 45 YEARS, SON-IN- LAW OF KOYALAN KUNHAMMED, KOYLAN HOUSE, AZHEEKKAL (P.O), KANNUR DISTRICT - 670009

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HUSSAIN, AGED 48 YEARS SON-IN- LAW OF KOYALAN KUNHAMMED, KAPPAKKADAVU, AZHEEKKAL (P.O), KANNUR DISTRICT - 670009

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C.H. BALAN, AGED 45 YEARS S/O C.H KANNAN, C.H HOUSE, AZHEEKKAL (P.O), KANNUR DISTRICT - 670009

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BEERANTAKATH HAMZA, AGED 48 YEARS S/O BEERANTAKATH IBRAHIM, BEERANTAKATH HOUSE, AZHEEKKAL(P.O), KANNUR DISTRICT - 670009

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R1 -R 4 BY ADVS. SRI.I.V.PRAMOD

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SRI.B.VINOD

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B. KEMAL PASHA, J.

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R.S.A. No.1084 of 2013

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Dated this the 5^th day of January, 2017

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J U D G M E N T

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~ ~ ~ ~ ~ ~ ~ ~ ~

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Appellant is the plaintiff in O.S. No.491/2005 of

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the Principal Munsiff's Court, Kannur. The suit is one for mandatory injunction, declaration and recovery of possession of plaint B schedule property, which is presently a pathway. Ultimately, the suit was dismissed. Challenging the dismissal, the plaintiff filed A.S. No.185/2012 along with I.A. No.166/2011 for getting the delay of 233 days occurred in filing the appeal, condoned, before the District Court, Thalassery, which was subsequently made over to the Subordinate Judge's Court, Kannur. The cause shown for getting the delay condoned is that the appellant became upset when he came to know about the judgment and

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RSA.1084/2013

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: 2 :

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decree and his Blood Pressure increased. The Doctor, whom he consulted, had advised him and his family members to keep him away from tensed atmosphere and thereby, he was not permitted by his family members and the Doctor to pursue further remedies in the matter and thus, the said delay had occasioned.

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The court below was not satisfied with the said cause shown and consequently, the I.A. was dismissed, which culminated in the dismissal of the appeal as time barred.

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According to the learned counsel for the appellant, the appellant did not get an opportunity to produce medical evidence to prove his illness, its duration and the aforesaid advice by his Doctor. The learned counsel for the appellant seeks for an opportunity to prove the same before the court below.

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On hearing either side, this Court is of the view that an opportunity can be given to the appellant to produce

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RSA.1084/2013

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: 3 :

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medical certificate and to adduce medical evidence to show that he was advised by his Doctor to keep away from tensed atmosphere or from pursuing further remedies in the matter. The court below shall allow the parties to adduce evidence, if any, in the matter and to decide I.A. No.166/2011 afresh, for which the matter has to be remitted to the lower appellate court.

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In the result, this Regular Second Appeal is allowed and the order and the impugned judgment and decree of the lower appellate court are set aside, without making any further observations or interference in the judgment passed by the trial court. The parties shall appear before the lower appellate court on 01.02.2017.

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Sd/- (B.KEMAL PASHA, JUDGE)

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aks/06/01

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// True Copy //

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PA to Judge

Kovummal Rajan v. Kappakkadavu Puzhayora Road Nirmana Committee

Case brief

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Kovummal Rajan v. Kappakkadavu Puzhayora Road Nirmana Committee

Case brief

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