IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 950 of 2007()
1. ASHRAF, AGED 33, S/O. LATE NEYYATHOORU
... Petitioner
Vs
1. NAYYATHOORU THITHU, AGED 63,
... Respondent
2. NEYYATHOORU AYISHU, AGED 68, W/O.
3. KONDARATHU ASIYA, AGED 49,
4. ASKAR, AGED 29, S/O. (LATE) KUNJI
5. ANEESHA, AGED 27, D/O. (LATE) KUNHI
6. ABDUL LATHEEF, AGED 24, S/O. (LATE)
For Petitioner :SRI.HARISH R. MENON
For Respondent :SRI.K.P.SUDHEER
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :13/07/2009
O R D E R
HARUN-UL-RASHID, J.
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R.S.A.No.950 of 2007
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Dated this the 13th day of July, 2009
JUDGMENT
The Second appeal is directed against the judgment and
decree in A.S. No. 47/2004 on the file of the Sub court, Tirur which arises
from the judgment and decree in O.S No. 99/2000 on the file of the
Munsiff’s Court, Tirur. The suit was filed by the plaintiffs/respondents 1 and
2 herein seeking for a decree to set aside the assignment deed
No.482/2000 dated 24.02.2000 of S.R.O. Kalpakamcheri, executed in
favour of the defendants in the suit. . When the case was taken up by the
trial court for haring, the plaintiffs were present and the defendants 1 to 5
were absent and accordingly set exparte. Hence the trial court set aside
the assignment deed mentioned above and issued a decree for
permanent prohibitory injunction.
2. The 2nd defendant filed appeal challenging the trial court’s
judgment and decree, before the lower appellate court as A.S. No.
47/2004 supported by an interlocutory application No. 600/2004 praying to
condone the delay in filing that appeal. There was a delay of 697 days in
filing the said appeal. The lower appellate court noted that the 2nd
defendant/appellant is the only one defendant among the defendants in
the suit that the 1st defendant is the mother of defendants 2 to 5 and that
none of the defendants appeared to prosecute the appeal . Hence the
R.S.A. No. 950 of 2007 -2-
lower appellate court passed an ex-parte decree. The 2nd defendant
contended before the lower appellate court that he was not served with
summons. The said contention was negatived by the lower appellate court
finding that there was service of summons. The further reason stated by
him that he was laid up due to appendicitis, was also not accepted by the
lower appellate court finding that there is no sufficient evidence to support
the said contention.
3. It is very important to note that the 2nd defendant and other
defendants are mother and children. . I am of the view that the reasons
stated by the 2nd defendant before the lower appellate court are not
enough for not prosecuting the appeal in time. Therefore the lower
appellate court rightly dismissed the petition for condonation of delay and
consequently the appeal.
4. Before this Court, the second appeal is also filed by the 2nd
defendant, belatedly, supported by C.M Application No. 704 of 2007. The
petition for condoning the delay was seriously opposed by the counsel for
plaintiffs and other defendants. There is a delay of 813 days in filing the
second appeal. In paragraphs 2 and 3 of the affidavit filed in support of
the petition for condoning the delay, some reasons are stated. On a
reading of the averments in the affidavit and taking into account the
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conduct 2nd defendant before the lower appellate court, I feel that the
reasons stated for not filing the second appeal in time are lame excuses .
The recklessness and irresponsibility on the part of the 2nd defendant are
already noticed by the courts below and even by this Court. Even
according to this Court there are no sufficient grounds are raised for
condoning the delay in filing the second appeal.
In the result C.M. Application No. 704/2007 is dismissed. Since the
Delay condonation petition (C.M. Application No.704/2007) is dismissed
the second appeal is also stands dismissed.
(HARUN-UL-RASHID, JUDGE)
es.
HARUN-UL-RASHID, J.
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R.S.A. No. 950 0f 2007
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JUDGMENT
13th July 2009