IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 14TH JANUARY 2009 / 24TH POUSHA 1930 WP(C).No.32344 of 2008(A) --------------------------------- OS.17/2002 of MUNSIFF COURT, MUVATTUPUZHA AS.89/2006 of SUB COURT,MUVATTUPUZHA .................... PETITIONERS: ---------------- 1. BASHEER, S/O.ALIYAR, ARYANKALAYIL HOUSE, KAVUMKARA KARA, VELLOORKUNNAM, MUVATTUPUZHA. 2. JALEENA, W/O.BASHEER, ARYANKALAYIL HOUSE, KAVUMKARA KARA, VELLOORKUNNAM, MUVATTUPUZHA. BY ADV. SRI.V.V.ASOKAN SMT.S.AMINA RESPONDENT: --------------- ALIKKUTTY, S/O.IBRAHIM, THACHALAYIL HOUSE, KAVUMKARA KARA, VELLOORKUNNAM, MUVATTUPUZHA. ADV. SRI.K.JAJU BABU FOR R1 SMT.M.U.VIJAYALAKSHMI FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.32344 of 2008(A) APPENDIX PETITIONERS' EXTS:- EXT.P1:- TRUE COPY OF THE DOCUMENT NO.3048/86 EXT.P2:- TRUE COPY OF DOCUMENT NO.3171/90 EXT.P3:- TRUE COPY OF DOCUMENT NO.3324/88 EXT.P4:- TRUE COPY OF THE JUDGMENT IN O.S.17/02 MUNSIFF COURT, MUVATTUPUZHA. EXT.P5:- TRUE COPY OF APPEAL MEMORANDUM IN A.S.89/06, SUB COURT, MUVATTUPUZHA. EXT.P6:- TRUE COPY OF I.A. NO.1360/07 IN AS.89/06 SUB COURT, MUVATTUPUZHA. EXT.P7:- TRUE COPY OF THE ORDER IN I.A. NO.1360/07, SUB COURT, MUVATTUPUZHA. ..................... K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.32344 of 2008 ------------------------------------------------ Dated this the 14th day of January, 2009 JUDGMENT Service is complete. Respondent has entered appearance through lawyer. Heard counsel on both sides. 2. The prayer of the petitioners who are the defendants in O.S.17/02 on the file of the Munsiff's Court, Muvattupuzha and the appellants in A.S.89/06 is to set aside Ext.P7 order and to enlarge the time for payment of cost from 16/08/07 so as to enable the petitioners to make payment of cost and to obtain the delay condoned in filing A.S.89/06 and staying all further execution steps in E.P.110/08 in O.S.17/02 till disposal of A.S.89/06 by the Sub Court, Muvattupuzha. 3. It is submitted that consequent on non payment of cost ordered, the delay condonation petition was dismissed and consequently W. P. C. No.32344 of 2008 -2- A.S.89/06 also was dismissed. Ext.P4 is the judgment passed by the trial court in O.S.17/02 decreeing the suit against the petitioners. Appeal filed by the petitioners as A.S.89/06 was dismissed on 16/08/07 consequent on dismissal of I.A.1061/06 seeking for condonation of delay in filing the appeal for non payment of the cost ordered as a condition precedent in allowing I.A.1061/06. The petitioner filed I.A.1360/07 for review of the order dismissing I.A.1061/06 and the consequent dismissal of the appeal. The said I.A. was dismissed by the first appellate court observing that I.A.1061/06 seeking to condone the delay in filing the appeal was allowed on 16/07/07 on condition of payment of cost of Rs.1,000/- to the respondent on or before 16/08/07 and that a consequential order passed dismissing a petition consequent on noncompliance of the condition imposed while W. P. C. No.32344 of 2008 -3- allowing the application is not amenable to review since the condition imposed had not been complied with. Ext.P6 application for review was filed only on 10/09/07 whereas the date fixed to pay the cost of Rs.1,000/- was on or before 16/08/07. No interest was shown by the petitioners to see that orders are obtained on the review petition on an early date and consequently, Ext.P7 order was passed only on 18/10/08 after more than an year. The attempt of the petitioners appear to be to protract the litigation one way or the other. However, I am of the view that the right of appeal shall not be deprived to the petitioner, but at the same time only imposing payment of cost of a higher amount so that the attempt at protracting litigation may not be resorted to. 4. In the result, I order that this Writ Petition shall stand allowed and the delay in W. P. C. No.32344 of 2008 -4- filing A.S.89/06 before the Sub Court, Muvattupuzha shall stand condoned in case an amount of Rs.3,000/- is deposited for payment or is paid to the respondent through his counsel positively on or before 23/01/09 and that in case of failure the order of the first appellate court dismissing the appeal consequent on dismissal of the delay condonation application as also Ext.P7 order passed on Ext.P6 review petition shall stand confirmed. It is made clear that on no account shall any extension be granted to deposit the above amount of cost imposed. 5. This Writ Petition is allowed with the above directions. K.P.BALACHANDRAN, JUDGE kns/-