Allowed

Kolathumkunnummal Kunhekkan. v. Ganapathy Kandi Kunhiraman

Kerala HC14 Nov 2023RSA/613/2023

Case brief

AI extract

What is this about?

The High Court allowed the regular second appeal challenging the dismissal of a delay petition. The appellant was granted condonation of a 684-day delay justified by pandemic-related illness, setting aside the appellate decree with cost directed to be paid within ten days.

What did the court decide?

The second appeal is allowed; the delay petition is allowed on payment of Rs. 3,000/- to respondent's counsel within 10 days, condoning the delay; the appellate decree is set aside.

Kolathumkunnummal Kunhekkan. Vs Ganapathy Kandi Kunhiraman — Specific Performance | Kerala HC (2023)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

¶4

TUESDAY, THE 14TH DAY OF NOVEMBER 2023 / 23RD KARTHIKA, 1945

¶5

RSA NO. 613 OF 2023

¶6

AGAINST THE DECREE AND JUDGMENT DATED 26.06.2023 IN I.A.NO.1/2022
IN A.S.NO.39/2022 BEFORE THE SUBORDINATE JUDGES COURT, KOYILANDY
AROSE FROM THE DECREE AND JUDGMENT DATED 30.03.2019 IN

¶7

O.S.NO.9/2011 ON THE FILE OF THE MUNSIFF COURT, PERAMBRA

¶8

APPELLANTS/APPELLANTS:

¶9

1KOLATHUMKUNNUMMAL KUNHEKKAN.

¶10

S/O KANIYAN, AGED 68 YEARS, COOLIE, KUNNATH KUNIYIL HOUSE, AMSOM, KALLODE DESOM, QUILANDY TALUK, KOZHIKODE DISTRICT, PIN - 673032

¶11

2 KOLATHUMKUNNUMMAL NARAYANI AGED 63 YEARS, D/O RAMAN,

¶12

KUNNOTH KUNIYIL HOUSE, ERAVATTOR AMSOM, KOZHIKODE DISTRICT, PIN - 673032

¶13

BY ADVS.

¶14

TINU T.JOSEPH B.N.SHIVSANKAR

¶15

RESPONDENTS/RESPONDENTS:

¶16

1 GANAPATHY KANDI KUNHIRAMAN S/O KUNHIRAMUNNI, AGED 63 YEARS NURSING ASSISTANT, ERAVATTOR AMSOM, KALLODE DESOM, QUILANDY TALUK, KOZHIKODE DISTRICT, PIN - 673525

¶17

2 THEKKEDATH VIJITHA D/O KUNHIRAMAN, AGED 52 YEARS, TEACHER, GANAPATHY KANDI HOUSE, ERAVATTOR AMSOM, KOZHIKODE DISTRICT, PIN - 673525

¶18

THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
14.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶19

R.S.A. No. 613 of 2023

¶20

¶21

JUDGMENT

¶22

Dated this the 14^th day of November, 2023

¶23

This regular second appeal has been filed under order XLII Rule 1 read with Section 100 of the Code of Civil Procedure (“CPC” hereinafter) challenging the decree and judgment in A.S. No.39 of 2022 dated 26.06.2023 on the files of the Court of Subordinate Judge, Koyilandy arose from decree and judgment in O.S. No.9 of 2011 dated 30.03.2019 on the files of the Munsiff Court, Perambra. The appellants herein are the defendants and the respondents are the plaintiffs in O.S. No. 9 of 2011.

¶24

Heard the learned counsel for the appellants as well as the learned counsel appearing for the respondents on admission.

¶25

The appeal stands admitted on hearing both sides by formulating the following substantial question of law:

¶26

i. Whether the First Appellate Court is justified in not condoning the delay of 684 days,

¶27

R.S.A. No. 613 of 2023

¶28

¶29

where the appellants produced medical records to justify the same?

¶30

In this matter, O.S. No.9/2011 filed by the respondents/plaintiffs herein against the appellants/ defendants was decreed directing the defendants “to remove or demolish the way constructed by them (i.e. plaint A-schedule pathway) by trespassing into the plaint B-schedule property.”

¶31

Against which A.S. No.39/2022 was filed along with I.A. No.1/2022 with prayer to condone delay of 684 days.

¶32

In order to justify the delay, two documents were placed showing illness of the appellants and treatment by Ayurveda physician. As per the documents, the doctors opined that the appellants were under treatment for Osteo Arthritis.

¶33

The Appellate Court is of the view that no sufficient reasons stated to condone the delay. Accordingly, the delay petition was dismissed. Consequently, the appeal was also dismissed.

¶34

¶35

R.S.A. No. 613 of 2023

¶36

On perusal of the available materials, it could be gathered that the delay is only 684 days, that too in between the period covered by Covid-19 pandemic. Therefore, in the interest of justice, to have a meritorial disposal of the appeal, I am inclined to hold that the Appellate court went wrong in dismissing the delay petition and the appeal.

¶37

Accordingly, this regular second appeal stands allowed. The delay petition, I.A. No.1/2022 in A.S. No.39/2022 stands allowed, on payment of cost of Rs.3,000/- (Rupees Three Thousand Only) by the appellants to the counsel appearing for the respondents before the Appellate Court, within a period of ten days from today. On payment of cost within time, the delay in filing the appeal stands condoned, thereby the Appellate decree and judgment stands set aside.

¶38

If the cost is not paid, as directed, within time, the delay petition will stand dismissed. Consequently, the first appeal also will stand dismissed.

¶39

Subject to payment of cost, there shall be a

¶40

R.S.A. No. 613 of 2023

¶41

¶42

direction to the First Appellate Court to hear and dispose of the A.S. No.39/2022 within a period of four weeks from date of payment of cost, without further delay. Execution of the decree shall stand deferred for a period of four weeks from today or till the date of disposal of A.S. No.39/2022, whichever occurs first.

¶43

Accordingly, this regular second appeal stands allowed as indicated above.

¶44

Sd/-

¶45

A. BADHARUDEEN JUDGE

¶46

Kolathumkunnummal Kunhekkan. v. Ganapathy Kandi Kunhiraman

Case brief

What is this about?

What did the court decide?

Kolathumkunnummal Kunhekkan. v. Ganapathy Kandi Kunhiraman

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Riyas Vs State of Kerala

Muraleedharan Unni K.N, @ Muraleedharan Unni Kakooth Nair, Vs Superintendent of Customs

Ratnam Vs Alice

Sushama Vs Manojkumar

Kolathumkunnummal Kunhekkan Vs Ganapathikandy Kunhiraman

Geetha Vs Prasanna Sasidharan