IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 17TH AUGUST 2011 / 26TH SRAVANA 1933 OP(C).No. 2676 of 2011(O) ------------------------------ [AS.NO.225/2010 OF DISTRICT COURT,KOLLAM] .................... PETITIONERS: --------------------- 1. V.SASI, AGED 64 YEARS, S/O.VELU, KOLLERIL VEEDU, KANNIMMEL CHERRY, SAKTHIKULANGARA VILLAGE, MARUTHADI P.O., FROM CHENCHERI VAYALIL VEEDU, KUREEPUZHA CHERRY, KOLLAM WEST VILLAGE. 2. S.GURUPRASAD, AGED 22 YEARS, S/O.V.SASI, KOLLERIL VEEDU, KANNIMMEL CHERRY, SHAKTHIKULANGARA VILLAGE, MARUTHADI P.O., KOLLAM. 3. S.AISWARYA, AGED 21 YEARS, D/O.V.SASI, KOLLESRIL VEEDU, KANNIMMEL CHERRY, SHAKTHIKULANGARA VILLAGE, MARUTHADI P.O., KOLLAM. BY ADVS. SRI.R.KISHORE, SRI.ARUN BABU, SRI.G.HARIPRASAD. RESPONDENTS: ------------------------ 1. KERALA STATE, REPRESENTED BY THE DISTRICT COLLECTOR, KOLLAM-691 013. 2. TAHSILDAR, TALUK OFFICE, KOLLAM, PIN-691 002. 3. VILLAGE OFFICER, KOLLAM WEST VILLAGE, PIN-691 002. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 17/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.2676/2011-O: APPENDIX PETITIONERS' EXHIBIT: EXT.P.1: COPY OF THE ORDER DTD. 21/06/2011 IN I.A. 1758/2010 IN A.S. 225/2010 IN THE FILE OF THE PRINCIPAL DISTRICT COURT, KOLLAM. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2676 of 2011 -------------------------------------- Dated this the 17th day of August, 2011. JUDGMENT Respondents appear through learned Government Pleader. 2. This Original Petition is in challenge of the order (though styled as judgment) of learned District Judge, Kollam on I.A.No.1758 of 2010 in A.S.No.225 of 2010. Petitioners' suit for injunction was dismissed. They preferred an appeal (A.S.No.225 of 2010) after 58 days of time prescribed with I.A.No.1758 of 2010 to condone the delay. 1st petitioner, the deponent stated in his affidavit that since he was laid up due to hip ache from June 10, 2010 onwards and was undergoing treatment under Dr.B.K.Ramachandran and 2nd petitioner onwards, his children are students they could not prefer the appeal on time. Learned District Judge was not impressed by the explanation given by petitioners and dismissed the application. 2. I ascertained from the learned District Judge through the Registrar (Judicial) whether following the impugned order any judgment was passed in the appeal followed by a decree. It is informed that no decree has been drawn up on pronouncing of judgment in A.S.No.225 of 2010 as, in the case of appeals dismissed on account of dismissal of delay condonation petition, no decree is drawn up and only a memo of cost would be recorded. 3. In Leena v. State (2010 2 KLT 836) I had occasion to deal with a OP(C) No.2676/2011 2 similar situation and it was directed that when an appeal is dismissed or rejected following dismissal of an application for condonation of delay, that dismissal is subject to a Second Appeal and hence it is necessary to draw up a decree consequent to the dismissal of the appeal as time barred. Hence, following the dismissal of an application for condonation of delay and the judgment in appeal, a decree ought to have been drawn up. 4. Now I am concerned with the question whether the order under challenge requires interference. The delay involved is 58 days. Reason for the delay has already been stated above. 1st petitioner has sworn the affidavit stating that he was undergoing treatment for hip ache. He also produced a medical certificate and gave evidence as PW1. There is no reason to think that the delay of 58 days was purposely brought out for, petitioners did not stand to gain by that. Having regard to the circumstances stated and considering the medical certificate as also the evidence of 1st petitioner as PW1, I am inclined to think that petitioners have shown sufficient cause for the delay. Hence learned District Judge ought to have allowed I.A.No.1758 of 2010. Resultantly this Original Petition is allowed. Ext.P1, order dated June 21, 2011 on I.A.No.1758 of 2010 (in A.S.No.225 of 2010) is set aside and that application will stand allowed. Consequently the judgment rejecting/dismissing the appeal will also stand set aside. Learned District Judge is directed to hear OP(C) No.2676/2011 3 admissibility of the appeal under Order 41 Rule 11 of the Code of Civil Procedure and pass appropriate orders in that matter. Petitioners shall appear before learned District Judge on 19.09.2011. THOMAS P.JOSEPH, Judge. cks