IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 15TH JULY 2010 / 24TH ASHADHA 1932 SA.No. 98 of 2001(C) ----------------------------- [AS.NO.2/1999 OF SUB COURT, VADAKARA, OS.NO.76/1994 OF MUNSIFF COURT, NADAPURAM] .................... APPELLANT/APPELLANT/DEFENDANT: -------------------------------------------------------- KIZHAKKARAKKAT JOSEPH, S/O. DEVASSIA, AGED 38 YEARS, AGRICULTURIST, KAVILUMPARA AMSOM, MARUTHONKARA DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.C.VATHSALAN. RESPONDENT/RESPONDENT/PLAINTIFF: ----------------------------------------------------------- KIZHAKKARAKKAT GEORGE, S/O. DEVASSIA, AGED 42 YEARS, CLERK, KAVILUMPARA AMSOM, MARUTHONKARA DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. BY SRI.M.C.SEN, SENIOR ADVOCATE, ADVS. SRI.M.P.SREEKRISHNAN, SMT.SHAHNA KARTHIKEYAN, SMT.SAVITHA GANAPATHIYATAN. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.BHAVADASAN, J. ------------------------------------- SA No.98 of 2001-C ------------------------------------- Dated 15th July 2010 Judgment The defendant in OS No.76/94 before the Munsiff's Court, Nadapuram, is the appellant. The parties and facts are hereinafter referred to as they are available before the Trial Court. 2. The suit was one for injunction. The plaintiff claims to have exclusive title and possession over the plaint schedule property. According to him, he acquired the said property from one Mariamma and her son, under Ext.A1 assignment deed. The property is having an extent of one acre ten cents. On 21.05.1994, the defendant tried to trespass into the plaint schedule property and therefore, the suit was laid. 3. The defendant resisted the suit. He denied the allegations raised in the plaint. According to the defendant, he got assignment of the plaint schedule SA No.98/01 2 property from one Subaida as per Ext.B9 Assignment Deed. He raised several other contentions, resisting the suit. 4. The Trial Court raised necessary issues for consideration. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A6 from the side of the plaintiff. The defendant examined DWs 1 and 2 and had Exts.B1 to B16 marked. Exts.C1 to C3 Commissioner's reports and plan were also marked. 5. On a consideration of the materials before it, the Trial Court found that the plaintiff has succeeded in establishing his claim and accordingly a decree was granted, which reads as follows : “In the result, the suit is decreed and a permanent injunction is passed restraining the defendant and his men from trespassing into plots F, G, H and I in Exhibit C2 plan, which are identified as the plaint schedule property and from interfering in any manner with the plaintiff's SA No.98/01 3 peaceful possession of the same. Exhibit C2 plan shall form part of this decree. Considering the facts and circumstances of this case and the relationship between the plaintiff and the defendant, there is no order as to costs.” 6. It appears that the defendant had filed an appeal before the Sub Court, Vadakara. But, that was belated. So, he also filed an application to condone the delay. The Appellate Court dismissed the delay condonation application and consequently, the appeal. Hence the Second Appeal. 7. It is unfortunate that the lower Appellate Court had dismissed the delay condonation application and the appeal, especially when it is seen that there was stiff contest before the Trial Court regarding the rights of parties. No harm or injury would have been caused to the plaintiff by condoning the delay in filing the appeal and hearing the appeal on merits. SA No.98/01 4 8. In the result, this appeal is allowed. The order passed by the first Appellate Court on the application for condonation of delay and the order dismissing the appeal, are set aside and the matter is remanded to the first Appellate Court, which shall take the appeal on file, consider the matter afresh and dispose of the same in accordance with law after hearing both parties. The parties will appear before the first Appellate Court on 04.08.2010. The Court shall endeavour to dispose of the appeal as expeditiously as possible, at any rate, within four months from the date of appearance of the parties before it. There will be no order as to costs. P.BHAVADASAN, JUDGE sta SA No.98/01 5