Mytheen Rawther Hussain Rawther vs Mytheen Rawehter Shamsudin … on 21 May, 2010

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

SA.No. 438 of 1997(B)



1. MYTHEEN RAWTHER HUSSAIN RAWTHER
                      ...  Petitioner

                        Vs

1. MYTHEEN RAWEHTER SHAMSUDIN RAWTHER
                       ...       Respondent

                For Petitioner  :SRI.V.N.ACHUTHA KURUP (SR.)

                For Respondent  :MYTHEEN RAWTHER SHAMSUDIN (PARTY)

The Hon'ble MR. Justice HARUN-UL-RASHID

 Dated :21/05/2010

 O R D E R
                     HARUN-UL-RASHID,J.
             ------------------------------
                     S.A.NO.438 OF 1997
            -------------------------------
                DATED THIS THE 21ST DAY OF MAY, 2010


                            JUDGMENT

Plaintiff in O.S.No.142/1987 on the file of the

Munsiff’s Court, Kottarakara is the appellant. The suit was filed

for declaration of title, possession, demarcation of boundary

and for consequential injunction. The suit was decreed in part

declaring his title and possession over the plaint schedule

property having an extent of one acre and 86 cents shown in

Ext.C2 plan as blue shaded plot and that the separating boundary

of the property of the plaintiff and the defendant was fixed as the

EF line and that the defendant is restrained by permanent

prohibitory injunction from trespassing upon the plaint schedule

property shown in Ext.C2 as blue shaded plot, from digging any

foundation pit therein, from constructing foundation basement or

building therein and from committing any acts of waste therein.

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S.A.438/1997

According to the plaintiff, the trial court should have declared

title and possession of the red shaded plot shown in Ext.C2 plan

and should have granted consequential injunction. The plaintiff

preferred an appeal for modification of the decree and judgment

to the extent the trial court denies the entire relief sought for in

the plaint.

2. There is a delay of 15 days in filing the

appeal, which was accompanied by the delay petition supported

by an affidavit. The Appellate Court dismissed the delay

petition stating that the delay is not satisfactorily

explained. Consequently, the appeal was also dismissed.

3. The present second appeal is filed against

the dismissal of the appeal by the Lower Appellate Court.

I have gone through the affidavit filed in support of the

petition for condonation of delay and I find that the delay

of 15 days is satisfactorily explained by the appellant.

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S.A.438/1997

The Lower Appellate Court should have condoned the

delay and the appeal should have been decided on merits.

Since the application for condonation of delay was

dismissed, the appeal was kept pending for a period of

more than 14 years. The reason stated for dismissing the

delay petition is not just and proper in the given

circumstances.

4. In the result, the judgment and decree

passed by the Lower Appellate Court is set aside.

I.A.No.613/96 filed under section 5 of the Limitation Act

for condonation of delay of 15 days in filing the appeal is

allowed. The Lower Appellate Court is directed to

dispose of the appeal on merits, after hearing both sides.

The Lower Appellate Court shall issue notice to the

respondent before the matter is taken up for final hearing

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S.A.438/1997

and shall dispose of the appeal within a period of six

months from the date of receipt of a copy of this

judgment.

Appeal is disposed of as above. There

will be no order as to costs.

HARUN-UL-RASHID,
JUDGE.

kcv