IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 8TH JUNE 2011 / 18TH JYAISHTA 1933 SA.No. 55 of 1999(F) ------------------------- AS.123/1994 of SUB COURT, OTTAPPALAM OS.194/1992 of MUNSIFF COURT, OTTAPPALAM .................... APPELLANT(S): APPELLANTS/DEFENDANTS --------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, PALAKKAD. 2. THE TAHSILDAR, OTTAPALAM. BY GOVERNMENT PLEADER SRI.M.R.SABU, SR. RESPONDENT(S):RESPONDENTS/PLAINTIFFS ------------------------------------------------------ 1. KUMARAN, S/O. MULLAM, KARUVANKUNNATH HOUSE, CHUDUVALATHUR DESOM, MUNDAMUKE AMSOM, OTTAPALAM TALUK (DIED). 2. SUNDARAN, S/O. MULLAM, KARUVANKUNNATH HOUSE, CHUDUVALATHUR DESOM, MUNDAMUKE AMSOM, OTTAPALAM TALUK. 3. KAUSALIA, W/O. KUMARAN, KARUVANKUNNATH HOUSE, CHUDUVALATHUR DESOM, MUNDAMUKE AMSOM, OTTAPALAM TALUK. 4. PRAKASAN, S/O. KUMARAN, KARUVANKUNNATH HOUSE, CHUDUVALATHUR DESOM, MUNDAMUKE AMSOM, OTTAPALAM TALUK. 5. PRADEEP, S/O. KUMARAN, KARUVANKUNNATH HOUSE, CHUDUVALATHUR DESOM, MUNDAMUKE AMSOM, OTTAPALAM TALUK. ADV. SRI.T.KRISHNANUNNI THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs P.BHAVADASAN, J. ---------------------------- S.A.No. 55 of 1999 --------------------------------- Dated this the 8th day of June, 2011 JUDGMENT It is unnecessary to go into the entire detail in this case because this second appeal can be disposed of on a short ground. 2. The original plaintiff was issued with Ext.A2 notice by second defendant asking him to vacate the land in his unauthorised occupation. Challenging the act of the issuance of notice the suit was laid. 3. The defendants resisted the suit by pointing out that they had resorted to the provisions of the Kerala Land Conservancy Act and the suit is not maintainable. They also disputed other allegations in the plaint. 4. Based on the above pleadings, necessary issues were raised. The evidence consists of the testimony of PWs 1 to 3 and documents marked as Exts.A1, A2 and A2(a) marked from the side of the plaintiffs. Defendants examined as DW1. Exts. C1 and C2 are the commissioner's report and plan. The trial court S.A.No. 55 of 1999 2 after evaluating the evidence in the case granted a decree restraining the defendants from enforcing Ext.A2 and A3 notices but leaving open their right to proceed in accordance with law. The State went up in appeal. Unfortunately, the appeal was filed out of time and there was a delay of 74 days in filing the appeal. Therefore, they filed I.A.No.2602/1994 dated 24.01.1998 to condone the delay in filing the appeal. The lower appellate court dismissed the delay condonation petition, consequently the appeal also. Hence, this Second Appeal. 5. The short question that arises for consideration is whether the lower appellate court has justified in dismissing the delay condonation petition and consequently the appeal, without holding the merits of the case. 6. On going through the affidavit in support of the delay condonation petition filed before the courts below, it is seen that except for the normal delay there is nothing to show that there is willful latches or negligence on the part of the plaintiff in filing the petition within the stipulated time. It is necessary to get the S.A.No. 55 of 1999 3 approval of the higher authorities and their sanction, before the appeal could be filed. That would necessarily take sometime. Cogent reasons given for the delay in the affidavit filed in support of the petition to condone the delay. 7. Further, the court below ought not to have been omitted to notice the nature of the claim that made in the plaint. The claim was being laid over a government land and that should have alerted the court while dealing with the delay condonation petition. The property is situated by the side of the river and lower appellate court ought to have considered the matter in all its seriousness. It is felt that the lower appellate court has erred in exercising its discretion and that resulted in miscarriage of justice. The lower appellate court ought to have considered the appeal on merits especially in view of the issue involved in the suit. In the result, this Second Appeal is allowed. The judgments and decrees of the lower appellate court are set aside and the matter is remanded to the lower appellate court for fresh S.A.No. 55 of 1999 4 consideration of the appeal on merits in the light of what has been stated above and in accordance with law. The parties shall appear before the lower appellate court on 26.07.2011. The lower appellate court shall make every endeavour to dispose of the appeal as expeditiously as possible, at any rate, within a period of three months from the date of appearance of the parties. There will be no order as to costs. P.BHAVADASAN, JUDGE. ln