IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 22ND JUNE 2011 / 1ST ASHADHA 1933 OP(C).No. 746 of 2011(O) ------------------------ AS NO.254/07 OF III ADDL. DISTRICT COURT, THIRUVANANTHAPURAM PETITIONER (S): -------------------- ADV.SOBHA K.C., AGED 48 YEARS, D/O.LATE ZACHARIAS, B.N.37, T.C.8/1627, MEDICAL COLLEGE.P.O., THIRUVANANTHAPURAM. BY ADV. . RESPONDENT(S): --------------- 1. NELSON, CAROLINE NIVAS, B.N.37(A), MEDICAL COLLEGE.P.O., PONGUMMOODU, THIRUVANANTHAPURAM, PIN 695 001. 2. CAROLINE NELSON, W/O.NELSON, CAROLINE NIVAS, B.N.37(a), MEDICAL COLLEGE.P.O., PONGUMMOODU, THIRUVANANTHAPURAM, PIN 695 001. ADV. SRI.M.R.ANANDAKUTTAN THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 22/06/2011, THE COURT ON 27/06/2011 DELIVERED THE FOLLOWING: OPC 746/2011 APPENDIX PETITIONER'S EXHIBITS : EXT.P1: COPY OF THE CROSS OBJECTION DATED 15.2.2010 IN A.S.NO.108/2007 FILED BY THE PETITIONER. EXT.P2: COPY OF THE DELAY CONDONATION PETITION IN I.A.NO.3038/2010 EXT.P3: COPY OF THE ORDER DATED 15.12.2010 PASSED BY THE ADDL. DISTRICT COURT NO.III, THIRUVANANTHAPURAM PASSED IN I.A.NO.3038/2010 IN A.S.NO.254/2007. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE K.T.SANKARAN, J. -------------------------------------- O.P.(C).No.746 of 2011 --------------------------------------- Dated this the 27th day of June, 2011 JUDGMENT The petitioner is the plaintiff in O.S.No.973 of 2006 on the file of the court of the Principal Munsiff of Thiruvananthapuram. The suit was decreed. However, the trial court directed that after installing a gate on the south - eastern corner of the plaint schedule property, the petitioner shall give a duplicate key of the gate to defendant No.1. The defendants filed A.S.No.254 of 2007 challenging the judgment and decree of the trial court. The petitioner filed a Memorandum of Cross Objection challenging that part of the judgment which is against her. There was a delay of 876 days in filing the Memorandum of Cross Objection. The petitioner filed I.A.No.3038 of 2010 to condone the delay. 2. The appellate court dismissed I.A.No.3038 of 2010 as per the order dated 15th December 2010, which is under O.P.(C) No.746/2011 2 challenge in this Original Petition. The court below held that no specific reasons were stated by the petitioner as to why the delay occurred. 3. Though notice was served on the respondents, there is no appearance for the respondents. The learned counsel appearing for the petitioner relinquished the vakalath. The petitioner appeared in person. 4. It is true that in the application for condonation of delay, the petitioner only stated that in spite of due diligence, the cross objection could not be filed within time. The petitioner also stated that for the purpose of determining the real question in controversy and to avoid multiplicity of suits, the delay requires to be condoned. 5. It is true that no specific reasons were stated by the petitioner as to how the delay occurred. However, since the appeal is pending, I think the application for condonation of delay O.P.(C) No.746/2011 3 in filing the cross objection can be allowed on payment of costs. The inconvenience caused to the respondents can be compensated in terms of costs. It is also apposite to note that the question of condoning the delay in filing the appeal and the delay in filing the Memorandum of Cross Objection cannot be considered with the same standard of proof. The Memorandum of Cross Objection is filed in a pending appeal. So long as the appeal is pending, it is only a question of inconvenience caused to the appellants on account of the delay in filing the Memorandum of Cross Objection. If the delay is not condoned, the petitioner would not be in a position to challenge that part of the judgment which went against her. She would have no other remedy, if the cross objection is not accepted. By way of extreme indulgence, I am of the view of that the petitioner can be allowed to prosecute the Memorandum of Cross Objection by condoning the delay in filing the same on payment of costs. Accordingly, the Original Petition is allowed and the order passed by the court below is set aside. The delay in filing the O.P.(C) No.746/2011 4 Memorandum of Cross Objection is condoned on condition that the petitioner shall pay a sum of ` 1,500/- as costs to the respondents within a period of one month. If the petitioner fails to pay the costs, the order passed by the court below shall remain in force and the Original Petition shall be treated as dismissed. K.T.SANKARAN JUDGE csl