IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 5TH SEPTEMBER 2011 / 14TH BHADRA 1933 OP(C).No. 690 of 2010(O) -------------------------------------- (CMA.NO.3/2010 OF DISTRICT COURT, WAYANAD, KALPETTA) ....... PETITIONER/APPELLANT/DEFENDANT: ------------------------------------------------------------ MUKRI IBRAHIM, S/O.SOOPY HAJI, PADINHARATHARA AMSOM DESOM, VYTHIRI TALUK. BY ADV. SRI.S.M.PRASANTH RESPONDENT(S): RESPONDENT/PLAINTIFF: ------------------------------------------------------------------- K.P.THOMAS, S/O.PHILIPOSE, KANNANTHANAM HOUSE, VARAMBETTA POST, PADINHARATHARA AMSOM DESOM, VYTHIRI TALUK 673 123. BY ADV. SRI.ABRAHAM P.GEORGE THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05/09/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.690/2010 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE JUDGMENT IN O.S.NO.135 OF 2005 ON THE FILES OF THE SUB COURT, SULTHAN BATHERY DTD. 16/01/2008. P2: COPY OF THE ORDER IN I.A.NO.507 OF 2008 AND I.A.NO.508 OF 2008 DTD.29/01/2010. P3: COPY OF THE ORDER IN I.A.NO.187 OF 2010 DTD. 17/09/2010. P4: COPY OF THE JUDGMENT IN CMA NO.3 OF 2010 DTD. 17/09/2010. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.690 of 2010 --------------------------------------- Dated this 05th day of September, 2011 JUDGMENT Ext.P3, order and Ext.P4, judgment both dated September 17, 2010 of the Court of learned District Judge, Waynad at Kalpetta in C.M.A.No.3 of 2010 are under challenge. Petitioner suffered an ex parte decree in O.S.No.135 of 2005 of the Court of learned Sub Judge, Sulthan Bathery on 16.01.2008 for specific performance of an (alleged) agreement for sale. Petitioner filed I.A.Nos.507 and 508 of 2008 on 31.05.2008 to set aside the ex parte decree and to condone the delay of 123 days in filing that application. The said application was dismissed by the learned Sub Judge as per Ext.P2, common order which petitioner challenged in C.M.A.No.3 of 2010. There was delay of 53 days and hence petitioner filed I.A.No.187 of 2010 to condone the delay. Learned Sub Judge dismissed I.A.No.187 of 2010 by Ext.P3, order and consequently, the appeal also was dismissed by Ext.P4, judgment. 2. Learned counsel for petitioner contends that petitioner has given sufficient cause for the delay in filing the appeal. It is pointed out that a copy of Ext.P2, order was obtained O.P(C).No.690 of 2010 -: 2 :- on 01.03.2010 and entrusted to the counsel for filing an appeal and under a bonafide mistake, Ext.P2, order was challenged in this Court as a First Appeal from an Order, but noting that such an appeal is not maintainable the appeal was returned on 08.04.2010. In the meantime, summer vacation started. The C.M appeal was filed before the learned District Judge on 19.05.2010 and hence the delay. Learned counsel requested that having regard to the circumstances stated the delay may be condoned. 3. Learned counsel for respondent has contended that there is no proper explanation for the delay and hence question of exercising discretionary jurisdiction does not arise. 4. There could be no doubt that unless the delay is properly explained the question of exercising discretionary jurisdiction to condone it, does not arise. But it has always been held that in considering the expression 'sufficient cause' occurring in Sec.5 of the Limitation Act, it must be given a liberal interpretation to advance the cause of justice. 5. In the present case, learned Sub Judge passed Ext.P2, common order on January 29, 2010. It is submitted that copy of the common order was obtained on 01.03.2010 and thereafter on 08.04.2010 a F.A.O was filed which was returned the same day. Then, the C.M appeal was filed before learned District Judge, O.P(C).No.690 of 2010 -: 3 :- Waynad at Kalpetta. It is true that petitioner did not adduce any evidence to show that any F.A.O was filed. But I do not find reason to disbelieve the statement in the affidavit to that effect. I am also to bear in mind that delay involved is only of 53 days. There is no reason to think that filing of the appeal was purposely delayed. Having these aspects in mind I am inclined to think that delay has been properly explained and the discretionary power ought to have exercised in favour of condonation of delay. Resultantly Ext.P3, order dismissing I.A.No.187 of 2010 is set aside and that application will stand allowed. Consequently Ext.P4, judgment also is set aside and C.M appeal is remitted to the Court of learned District Judge, Waynad at Kalpetta for disposal in accordance with the law. Learned District Judge shall dispose of the C.M appeal as early as possible. Parties shall appear before the learned District Judge on 28.09.2011. Sd/- (THOMAS P JOSEPH, JUDGE) Sbna/-