IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 21ST JUNE 2011 / 31ST JYAISHTA 1933 OP(C).No. 1937 of 2011(O) ------------------------- AS.18/2010 of I ADDL. DISTRICT COURT, TRIVANDRUM OS.177/2009 of SUB COURT,NEYYATTINKARA .................... PETITIONR (S): -------------------- R.RAGHAVAN NADAR, ADVOCATE, S/O.RAMAKRISHNAN NADAR, RESIDNG AT CHELLAYYA ARAMAM, KANAKA NAGAR, KOWDIAR VILLAGE, THIRUVANANTHAPURAM-695 003. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP SRI.MATHEWS RAJU RESPONDENT(S): --------------- CHELLAMMA K.C. KAMALAM, W/O.P.K.KUTTAN, RESIDING AT LAL BAHVAN, AVANAKUZHY,KOTTUKAL DESOM, KOTTUKAL VILLAGE, THIRUVANANTHAPURAM-695 501. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 1937 of 2011(O) PETITIONER'S EXTS: EXT.P1: COPY OF AFFIDAVIT OF THE RESPONDENT ACCOMPANYING THE PETITION FOR CONDONATION OF DELAY DTD.13.1.2011 EXT.P2: COPY OF COUNTER AFFIDAVIT FILED BY THE PETITIONER DTD.26.2.2011. EXT.P3: COPY OF ORDER IN IA NO.80/2011 IN AS NO.18/2010 ON THE FILE OF THE COURT OF THE ADDL.D.J-I, THIRUVANANTHAPURAM DTD.26.2.2011. RESPONDENT'S EXTS: NIL /TRUE COPY/ P.A.TO JUDGE K.T.SANKARAN, J. --------------------------------- O.P(C)No.1937 OF 2011 --------------------------------- Dated this the 21st day of June, 2011 JUDGMENT The Additional District Judge, Thiruvananthapuram condoned the delay of 227 days in filing A.S.No.18 of 2010 filed by the respondent on condition of payment of cost of `1,000/-(Rupees one thousand only), which is under challenge at the instance of the respondent in the appeal. 2. In the application for condonation of delay, the following facts were stated. O.S.No.177 of 2009, against which the appeal was filed was originally filed as O.S.No.60 of 1996 before the Munsiff's Court, Neyyattinkara. In A.S.No.603 of 1996 filed against that decree, the High Court remanded the case to the trial court. The High Court also transferred the case to the Sub Court, Neyyattinkara where it was re- numbered as O.S.No.177 of 2009. That suit was tried along with O.S.No.108 of 1993 before the Sub Court, Neyyattinkara. The Sub Court, Neyyattinkara dismissed O.S.No.177 of 2009 and decreed O.P(C)No.1937 OF 2011 2 O.S.No.108 of 1993. It is stated that the appellant(respondent herein) entrusted the matter to an Advocate who filed two appeals before the High Court against the judgment and decree in O.S.Nos.177 of 2009 and 108 of 1993. However, the appeal filed against O.S.No.177 of 2009 was returned as not maintainable in the High Court. Thereafter, the appeal was presented before the District Court. It is stated that in that process, there occurred a delay of 228 days. 3. The court below held that the appellant did not produce the relevant records to show that an appeal was filed before the High Court and it was returned. It is to be noted that in the counter affidavit filed by the petitioner herein(respondent in the appeal), he did not deny the averment that an appeal was erroneously filed before the High Court. He is not aware of any appeal having been filed before the High Court. He only stated that he did not receive any notice in the appeal filed before the High Court. However, he also admitted that he received notice on R.F.A No.848 of 2010 filed against the judgment and decree in O.S.No.108 of 1993. The court below even after holding that the delay is not satisfactorily explained, thought that the discretion should be exercised to condone the delay, so that the appeal could be heard on the merits. Accordingly, the application for condonation of delay was allowed on payment of costs of `1,000/-. O.P(C)No.1937 OF 2011 3 4. There is no dispute that the two suits mentioned above were tried together. There is also no dispute that against the judgment and decree in O.S.No.108 of 1993 , the respondent filed R.F.A No.848 of 2010 before the High Court. It is true that there is a delay of 143 days in filing that appeal. If the application for condonation of delay in filing the present appeal before the District Court is dismissed, naturally the appeal would have to be dismissed. If so, it is likely to effect R.F.A No.848 of 2010 pending before the High Court as well. In these circumstances, I am of the view that no interference is called for in the order passed by the court below. For the aforesaid reasons, the Original Petition is dismissed. K.T.SANKARAN, JUDGE. cms