IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 953 of 2009()
1. K.V.SREEDHARA PANICKER,
... Petitioner
Vs
1. K.V.SULOCHANA, VALIYA KALAYIL,
... Respondent
For Petitioner :SRI.P.VINODKUMAR
For Respondent :SRI.N.ASHOK KUMAR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :08/03/2010
O R D E R
THOMAS P JOSEPH, J.
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R.S.A.No.953 of 2009E
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Dated this 08th day of March, 2010
JUDGMENT
The appeal arises from judgment and decree of learned Sub
Judge, Chengannur in A.S.No.11 of 2009 dismissing the appeal as it is
filed out of time consequent to the dismissal of I.A.No.96 of 2009 to
condone the delay. Respondents filed the suit for fixation of boundary,
mandatory injunction and other reliefs claiming that the suit property
along with other items originally belonged to the mother of appellant
and respondent, Narayani Panickathi and after her death, the legal
representatives including parties hereto partitioned the property as per
document No.2805 of 2009. In that partition, item No.1, 15 cents was
set apart to the share of Narayani Panickathy. She settled the same in
favour of the respondent vide Ext.A3, settlement deed dated 09-12-
1996. Property on the west of the said property is item No.2, 23 cents
in the partition deed alloted to the appellant. Respondent wanted the
boundary of the suit property to be fixed and a mandatory injunction to
direct appellant to remove the structures allegedly put up in the suit
property. Appellant denied that respondent is the owner in possession
of the suit property and claimed that even prior to Ext.A2, partition
deed he was in possession of the suit property. Trial court observed
that the said plea of appellant is against recital in Ext.A2, partition
R.S.A.No.953 of 2009 2
deed to which he also was a party, upheld title of respondent as per
Ext.A3, settlement deed and granted reliefs. Appellant challenged that
judgment and decree in the first appellate court as A.S.No.11 of 2009
and since there was a delay of 2239 days (more than six (6) years) he
filed I.A.No.96 of 2009 to condone that delay. That application was
opposed by respondent, did not find favour with the first appellate
court and ended in a dismissal. Consequently the appeal also was
dismissed. Hence the second appeal. It is contended that first
appellate court has not gone into the merit of the case while condoning
the delay. According to the learned counsel appellant was under a
bonafide belief that since he has filed a separate suit for cancellation of
Ext.A3, he could settle the case with the respondent amicably.
According to the learned counsel for respondent there is no justifiable
reason to condone the delay.
2. While considering the application to condone the delay,
court has to consider sufficiency of the ground on facts pleaded and
made out in the application as held in Municipal Corporation of
Ahamedabad through the Muncipal Commissioner Vs. Voltas
Limited (AIR 1995 Guj 29). Hence in deciding whether appellant has
sufficient cause not to file the appeal on time, the court is concerned
with the plea raised by the appellant in support of the application and
find whether there is sufficient explanation for the delay. The question
of exercising discretion would arise only when the court finds that
R.S.A.No.953 of 2009 3
appellant had sufficient cause not to file the appeal within time. Here
the only reason stated in the application in support of the application
is that appellant did not prefer the appeal hoping that dispute could be
settled amicably but, that settlement did not materialise. I am unable
to think that for all the 2239 days appellant has been nursing the
thought that he could settle the dispute with the respondent. The
huge delay in filing the appeal is not explained. First appellate court
found that the reason stated cannot be believed, nor is sufficient cause
to condone the delay. I do not find reason to interfere with the finding
of the first appellate court, nor is any substantial question of law
involved in the matter.
Resultantly the second appeal is dismissed in limine.
THOMAS P JOSEPH,
JUDGE
Sbna/