IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 29TH AUGUST 2011 / 7TH BHADRA 1933 RSA.No. 1008 of 2011() ---------------------- AS.72/2010 of DISTRICT COURT, KOTTAYAM OS.491/2005 of PRL.SUB COURT,KOTTAYAM .................... APPELLANT/APPELLANT/1ST DEFENDANT: -------------------- SURENDRAN, S/O. VASU, AGED 56, RESIDING AT PATHIYIL HOUSE, LALIKKADU BHAGOM, PERUNNA KARA, PAYIPPADU PANCHAYAT, CHANGANACHERRY VILLAGE. BY ADV. SRI.S.JAYAKRISHNAN RESPONDENTS/ PLAINTIFF/2ND AND 3RD DEFENDANTS --------------- 1. P.C.JOSEPH @ JOSEKUTTY, AGED 53, S/O. CHACKO, PULIMOOTTIL HOUSE, PERUNNA KARA CHANGANACHERRY VILLAGE, CHANGANACHERRY TALUK.- 686101. 2. DILEEPKUMAR, AGED 24, S/O. CHANDRAN, ATTITHARA HOUSE, PERUNNA KARA PAYIPPADU PANCHAYAT, CHANGANACHERRY TALUK- 686101. 3. CHELLAPPAN, AGED 64, S/O. VELUTHAKUNJU SANTHI NIVAS, CHANNANICKADU KARA, PANACHIKKADU VILLAGE, KOTTAYAM TALUK – 686102. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.1008 of 2011 ............................................ DATED THIS THE 29th DAY OF AUGUST, 2011 JUDGMENT First defendant in O.S.491 of 2005 on the file of Sub Court, Kottayam is the appellant. Defendants 2 and 3 were exparte. First respondent instituted the suit for recovery of possession and declaration of title and realisation of Rs.21,600/- being damages for the use and occupation. The suit was originally decreed exparte on 7.6.2008. Appellant filed an application under Rule 13 of Order IX of Code of Civil Procedure to set aside the exparte decree. The petition was allowed and the exparte decree was set aside. The suit was thereafter included in the special list on 6.1.2009. First respondent was examined as PW1. Exts.A1 to A7, C1 and C1(a) were marked. After closing the evidence of first respondent, the case was posted for the evidence of the appellant on the request of his counsel, to 9.1.2009. The counsel prayed further time and the case was adjourned to 13.1.2009 and thereafter to 14.1.2009. On 14.1.2009, the counsel did not appear. Thereafter the evidence was closed and a decree was RSA 1008/2011 2 passed as prayed for on 31.1.2009. Appellant filed A.S.72 of 2010 along with I.A.111 of 2010, an application under Section 5 of the Limitation Act to condone the delay of 356 days in filing the appeal. First respondent opposed the application. Learned District Judge, as per order dated 18.6.2011 dismissed the application to condone the delay finding that no sufficient cause was shown for the failure of the appellant to file the appeal in time. Consequently, appeal was dismissed. It is challenged in the second appeal. 2. Learned counsel appearing for appellant was heard. The argument of the learned counsel is that appellant was unaware of the decree and as his counsel was laid up, he was not informed of the progress of the suit and only when he received notice in the execution petition, he came to know about the decree and immediately steps were taken to challenge the decree and therefore the first appellate court should have condoned the delay. 3. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. The reason shown by the appellant for condoning the delay of 356 days in RSA 1008/2011 3 filing the first appeal was his ignorance about the decree as well as the illness of the counsel. As rightly found by the learned District Judge, though an exparte decree was passed against the appellant on 7.6.2008, on an application filed by him, the exparte decree was set aside granting opportunity to the appellant to contest the suit. It is thereafter the suit was included in the special list on 6.1.2009. After closing the evidence of the plaintiff, on the request of the counsel of the appellant, case was posted for defence evidence. It was seen adjourned thrice and finally neither the appellant nor the counsel appeared and the learned Sub Judge, based on the evidence on record granted a decree on merits in favour of the first respondent. 4. Though the learned counsel argued that the counsel appearing for him before the trial court was laid up due to illness, the records show that first respondent who was examined as PW1 was cross examined by the counsel and to enable the appellant to give evidence, adjournment was sought for and it was granted. In such circumstances, the illness of the counsel is not a ground to uphold the contention of the appellant that he did not get opportunity to adduce evidence. When the suit was decreed RSA 1008/2011 4 exparte earlier and the exparte decree was set aside by the court and evidence was recorded, appellant cannot be heard to contend that he was unaware of the inclusion of the suit in the special list or the evidence recorded or the decree passed. In such circumstances, when the inordinate delay of 356 days was not explained properly, first appellate court was justified in dismissing the application and consequently the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk