IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 RSA.No. 1160 of 2008() ---------------------- AS.145/2006 of SUB COURT, PALA OS.535/1999 of MUNSIFF MAGISTRATE, ERATTUPETTA .................... APPELLANT/IST APPELLANT/IST DEFENDANT --------------------------------------------------------- N.V.THOMAS, S/O.VARKEY, NAMBUKADATHU HOUSE, THALAPPALAM KARA, MOONNILAVU VILLAGE, MOONNILAVU P.O. BY ADV. SRI.A.K.ALEX SRI.K.P.SURESH KUMAR RESPONDENTS: RESPONDENT&2ND APPELLANT/PLAINTIFF& 2ND RESPONDENT ------------------------------------------------------------------------------------------------ 1. SEBASTIAN, S/O.MATHAI, MATTATHIL HOUSE, EDAMATTOM KARA, POOVARANI VILLAGE. 2. ANSAMMA WIFE OF N.V.THOMAS RESIDING AT NAMPUDAKATH HOUSE, THALAPPALAM KARA MOONNILAVU VILLAGE, MOONNILAVU P.O. ADV. SRI.BABY THOMAS FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO. 2556 OF 2008 IN R.S.A. NO. 1160 0F 2008 DISMISSED SD/- HARUN-UL-RASHID, JUDGE 16.7.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No.1160 of 2008 ---------------------------------------- Dated this the 16th day of July, 2009 JUDGMENT The Second Appeal is directed against the judgment and decree in A.S. No. 145/2006 and the order in I.A. No. 1840/2006 on the file of the Sub court Pala which arises from the judgment and decree in O.S. No. 535/1999 on the file of the Munsiff Court, Erattupetta. The suit for injunction was decreed by the trial court restraining the defendants and their men from altering the existing structure of plaint item No.2 or from committing any waste and mischief in item No. 1 or from causing obstruction to the peaceful use and enjoyment of the property of the plaintiff. The decree and judgment were passed by the trial court after considering the evidence let in by both sides. PWs 1 to 3 were examined and Exts. A1 to A5 were marked on the plaintiff's side. The suit was seriously contested by the defendants. DWs 1 to 3 were examined and Exts. B1 to B6(a) were marked on the side of the defendants. The decree was passed on 31.10.2002. The appeal filed by the 1st defendant was dismissed by the lower appellate court holding that the same was filed beyond the period of limitation. Aggrieved by the dismissal of the appeal by the court below, the 1st defendant filed the second appeal before this court. The parties hereinafter referred to as plaintiff and defendants as arrayed in the suit. R.S.A. No. 1160 of 2008 -2- None of the defendants other than the appellant filed appeal before the lower appellate court . A.S. No. 145/2006 was filed by the appellant/1st defendant with a petition to condone the delay of 3 years and 344 days in filing the appeal. The lower appellate court considered the reasons stated for the delay and held that the delay was not explained properly and that the reasons narrated by the 1st defendant to condone the delay is not at all believable. Resultantly, the lower appellate court dismissed the delay condonation petition and consequently the appeal. In the above facts and circumstances of the case there is no justification at all for the appellant/1st defendant to prefer the first Appeal belatedly, waiting for a period of nearly 4 years. I fully agree with the reasons stated by the lower appellate court for dismissing the delay condonation petition and the consequent dismissal of the appeal. No grounds are made out by the appellant in this Second Appeal to invoke this Court's jurisdiction under Section 100 of the C.P.C. No questions of law much less any substantial question of law arises for consideration in this appeal. This appeal fails and dismissed in limine . (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A. No. 1160 of 2008 ---------------------------- JUDGMENT 16th July, 2009