IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 4TH JUNE 2009 / 14TH JYAISHTA 1931 SA.No. 167 of 1995(C) ------------------------------------ AS.14/1994 of D.C. & SESSIONS COURT,KOLLAM OS.115/1992 of MUN-MAGI COURT, SASTHAMCOTTA .................... APPELLANT/APPELLANT/PLAINTIFF: ---------------------------------------------------- M. GEORGE, PULLAMPALLY VADAKKATHIL, PADINJARE PURA, EDAKKADU MURI, PORUVAZHY, SASTHAMCOTTA. BY ADV. SRI.P.B.SURESH KUMAR(QUILON) SRI.JAGADEESH LAKSHMAN RESPONDENT/RESPONDENT/DEFENDANT: ------------------------------------------------------------- D. VELUTHA KUNJU, VAYALIL PUTHEN VEEDU, MAMAMPUZHA MURI, KUNNATHOOR VILLAGE. BY ADV. SHRI V. PREMCHAND & SHRI N. REVI THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- S.A.NO. 167 OF 1995 C -------------------------------------- Dated this the 4th June, 2009 JUDGMENT Appellant is the plaintiff in OS No.115/92. The respondent filed OS No.694/91. Both Suits were tried together. The trial court dismissed the Suit filed by the appellant and decreed the Suit filed by the respondent. Against the Judgment in OS No.115/92, the appellant filed an Appeal along with an application for condonation of delay. That application was rejected and consequently the Appeal also was dismissed. This Second Appeal is directed against the same. 2. Heard the learned counsel for the appellant. There is no appearance for the respondent. Learned counsel for the appellant would contend that the delay occurred only in the following circumstances: The appellant filed AS No.139/93 against the judgment in OS No.694/91. It is his case that at the time of filing the Appeal, he came to know that one more copy of the Decree and Judgment is necessary for maintaining the SA.NO.167/95 C 2 Appeal against the Judgment and Decree in OS No.115/92. It is, inter alia, stated that the Advocate who was appearing in the lower court had also advised him that one Appeal was sufficient and, therefore, one application was filed. Only when AS No.139/93 was filed, he was advised to get one more copy and, thereafter he immediately contacted and applied for one more copy. It is submitted that he was laid up from 2.1.1994 till 17.1.1994 and he was not able to get the copy from the Advocate. The delay is described as 4 days. The first appellate court found that there was a delay of 34 days and not 4 days. I find that in the order, it is noted that the respondent did not file any objection to the application for condoning the delay. But, noting the discrepancy in the number of days, the application was rejected. The delay is only 34 days. In the Memorandum of Appeal, it is admitted that actually there was a delay of 34 days, but what is stated, it is only an arithmetical mistake. It is stated that the Court has a duty to permit correction of the mistake. Learned counsel for the appellant would submit that the SA.NO.167/95 C 3 appellant should have been given an opportunity to correct the mistake. As already noted, there is no counter affidavit filed to the application. There is no appearance also for the respondent. The delay is only 34 days. The reason for the delay is not disbelieved. In such circumstances, the application to condone the delay is allowed and consequently, the Second Appeal is allowed and the impugned Judgment and Decree in AS No.14/94 are set aside and the Appeal will be taken up and dealt with in accordance with law. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy // PS to Judge SA.NO.167/95 C 4 K.M. JOSEPH, J. SA NO.167 OF 95C JUDGMENT 4th June, 2009.