IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 27TH JANUARY 2010 / 7TH MAGHA 1931 WP(C).No. 2576 of 2010(O) ------------------------- AGAINST THE ORDER DATED 20/10/2009 IN IA 556/2008 IN AS.21/2008 of SUB COURT,KATTAPPANA OS.196/2003 of MUNSIFF COURT, PEERUMEDU .................... PETITIONER(S): --------------- VIJAYAKUMARI P.K, W/O.LATE P.V.SURENDRAN, AGED 59 YEARS, PETTATHANAM HOUSE, H.NO,.13/605, SHANTI NAGAR, KUREEKKAD PO, 682 305, FROM PETTATHANAM HOUSE, EDAKUNNAM VILLAGE, MUNDAKKAYAM KARA, KANJIRAPPALLY TALUK. BY ADV. SMT.C.G.BINDU SMT.C.G.AJITHA SMT.D.SARITHA SMT.M.K.RAJITHA RESPONDENT(S): --------------- RADHA DEVI, D/O.SARASWATHI AMMA, PADINJATHU HOUSE, THRIKKODITHANAM KARA, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * W.P. (C ) No. 2576 of 2010 * * * * * * * * * * * * * * * * * * Dated: 27th January, 2010 JUDGMENT The Writ Petitioner who is the third respondent in A.S. No. 21 of 2008 on the file of the Sub Court, Kattappana, challenges Ext. P15 order dated 20-10-2009 in I.A. 556 of 2008 as per which the lower appellate court has condoned the delay of 1223 days in filing the said appeal by the respondent herein. The condonation of the delay was subject to payment of a sum of Rs. 1500/- (Rupees one thousand five hundred only) towards costs. 2. Assailing Ext.P15 order, the learned counsel for the petitioner made the following submissions before Court :- The suit was one for injunction filed by the respondents herein. The suit was dismissed by the Munsiff Court, Peermade as per Ext.P7 judgment in which the plaintiff's case was found against. There is absolutely no merit in the case of the plaintiff/respondent. Even the lower appellate court has observed in Ext.P15 order that the delay is not properly and satisfactorily explained. In spite of that the court below was committing an W.P. (C ) No. 2576 of 2010 -:2:- error of jurisdiction in condoning the delay on payment of costs. In the original suit there were only two defendants of whom the 2nd defendant Surendran was the Writ Petitioner's husband. But in the appeal filed by the respondent herein besides the petitioner's husband, the Writ Petitioner is also shown as the 3rd respondent. 3. I am afraid that I cannot agree with the above submissions. While disposing of an application to condone the delay, it is impermissible for the court to consider whether the party has a good case on merits in the appeal. (See State of Gujrat v. Syed Mohammed Baquir El Edross - AIR 1981 SC 1921). If according to the Writ Petitioner, the respondents has no case on merits, the writ petitioner will have no difficulty in getting the appeal dismissed on merits. 4. It is true that the lower appellate court has observed that the delay has not been properly and satisfactorily explained. But there is no finding that the appellant before the lower appellate court was guilty of gross negligence or laches. Hence, going by the principles laid down in the decision of the Apex Court in Collector, Land Acquisition, Anantnag v. Katiji - AIR 1987 SC 1353 in the absence of a finding that the party was guilty of gross negligence or laches, the court was entitled to take a lenient view in the matter of condonation of delay. That is W.P. (C ) No. 2576 of 2010 -:3:- precisely what the court below has observed and the Court was inclined to put the appellant/plaintiff on terms. 5. It is true that the writ petitioner was not a party before the trial Court. But her husband who was the 2nd defendant in the suit died after the decree passed by the trial court. Hence, she was really shown as one of the respondents in the appeal. In a case where a party dies after the order of the lower court and before the filing of the appeal, there is no question of any impleadment . It is enough if the cause title of the appeal memorandum is suitably prepared by adding the name of the legal representative as well. After giving my anxious consideration to the matter, I am not inclined to interfere with the discretion exercised by the lower appellate court in condoning the delay. If , according to the petitioner, the appellant/plaintiff has no case on merits, she can try to get the appeal dismissed and the decree executed. I am not inclined to admit this Writ petition which is accordingly dismissed in limine. V. RAMKUMAR, (JUDGE) W.P. (C ) No. 2576 of 2010 -:4:- ani.