IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 21ST MAY 2010 / 31ST VAISAKHA 1932 SA.No. 438 of 1997(B) --------------------- AGAINST THE ORDER DATED 11/02/1997 IN IA.613/96 IN AS.40/1996 of SUB COURT,KOTTARAKKARA OS.142/1987 of MUNSIFF COURT, KOTTARAKKARA .................... APPELLANT/PETITIONER/APPELLANT/PLAINTIFF: ----------------- MYTHEEN RAWTHER HUSSAIN RAWTHER, VAYALKARA VEEDU,MUTHAYIL, KUMMIL P.O., KUMMIL VILLAGE. BY ADV. SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE SRI.B.S.SWATHY KUMAR RESPONDENT/COUNTER PETITIONER/RESPONDENT/DEFENDANT: ------------------- MYTHEEN RAWTHER SHAMSUDIN RAWTHER, VAYALKARA VEEDU, (KALEELAZHIKAM PURAYIDOM), MUTHAYIL MURI, KUMMIL P.O., KUMMIL VILLAGE. ADV. MYTHEEN RAWTHER SHAMSUDIN (PARTY) THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. ------------------------------ S.A.NO.438 OF 1997 ------------------------------- DATED THIS THE 21ST DAY OF MAY, 2010 JUDGMENT Plaintiff in O.S.No.142/1987 on the file of the Munsiff's Court, Kottarakara is the appellant. The suit was filed for declaration of title, possession, demarcation of boundary and for consequential injunction. The suit was decreed in part declaring his title and possession over the plaint schedule property having an extent of one acre and 86 cents shown in Ext.C2 plan as blue shaded plot and that the separating boundary of the property of the plaintiff and the defendant was fixed as the EF line and that the defendant is restrained by permanent prohibitory injunction from trespassing upon the plaint schedule property shown in Ext.C2 as blue shaded plot, from digging any foundation pit therein, from constructing foundation basement or building therein and from committing any acts of waste therein. -2- S.A.438/1997 According to the plaintiff, the trial court should have declared title and possession of the red shaded plot shown in Ext.C2 plan and should have granted consequential injunction. The plaintiff preferred an appeal for modification of the decree and judgment to the extent the trial court denies the entire relief sought for in the plaint. 2. There is a delay of 15 days in filing the appeal, which was accompanied by the delay petition supported by an affidavit. The Appellate Court dismissed the delay petition stating that the delay is not satisfactorily explained. Consequently, the appeal was also dismissed. 3. The present second appeal is filed against the dismissal of the appeal by the Lower Appellate Court. I have gone through the affidavit filed in support of the petition for condonation of delay and I find that the delay of 15 days is satisfactorily explained by the appellant. -3- S.A.438/1997 The Lower Appellate Court should have condoned the delay and the appeal should have been decided on merits. Since the application for condonation of delay was dismissed, the appeal was kept pending for a period of more than 14 years. The reason stated for dismissing the delay petition is not just and proper in the given circumstances. 4. In the result, the judgment and decree passed by the Lower Appellate Court is set aside. I.A.No.613/96 filed under section 5 of the Limitation Act for condonation of delay of 15 days in filing the appeal is allowed. The Lower Appellate Court is directed to dispose of the appeal on merits, after hearing both sides. The Lower Appellate Court shall issue notice to the respondent before the matter is taken up for final hearing -4- S.A.438/1997 and shall dispose of the appeal within a period of six months from the date of receipt of a copy of this judgment. Appeal is disposed of as above. There will be no order as to costs. HARUN-UL-RASHID, JUDGE. kcv