IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 11TH FEBRUARY 2011 / 22ND MAGHA 1932 OP(C).No. 1242 of 2010(O) ------------------------- CMA.13/2010 of SUB COURT,NEYYATTINKARA .................... PETITIONERS ----------------- 1. WILSON LAZAR, RESIDING AT HOUSE NO.X/130, AVIKUZHY VEEDU, OLATHANNI, NEYYATTINKARA P.O., THIRUVANANTHAPURAM. 2. JOSE S.WILSON, RESIDING AT HOUSE NO.X/130, AVIKUZHY VEEDU, OLATHANNI, NEYYATTINKARA P.O., THIRUVANANTHAPURAM. BY ADV. SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN RESPONDENT(S): --------------- 1. MARY MATHA EDUCATION SOCIETY, REG.NO.T.284/9, PALIYODE P.O., DALUMUGNAM P.O., NEYYATTINKARA, THIRUVANANTHAPURAM, REP. BY ITS CHAIRMAN R.MURGAN-695125. 2. R.MURGAN, CHAIRMAN, MARY MATHA EDUCATION SOCIETY, RESIDING AT RAJCOT, THYCAUD, THIRUVANANTHAPURAM-695123. 3. K.SHANTHI, RESIDING AT HOUSE NO.XXXI/111, AVIKUZHY VEEDU, OLATHANNI, NEYYATTINKARA P.O., THIRUVANANTHAPURAM-695121. OP(C).No. 1242 of 2010 4. M.CELINE, RESIDING AT HOUSE NO.X/130, AVIKUZHY VEEDU, OLATHANNI, NEYYATTINKARA P.O., THIRUVANANTHAPURAM-695121. 5. S.SHEEJA, RESIDING IN DO. DO., PIN-695121. 6. A.P.AJITH, MEENACHIRA ROADARIKATHU VEEDU, PULYARKONAM, DALUMMUGHAM, NEYYATTINKARA P.O., THIRUVANANTHAPURAM, NOW RESIDING AT 'USHUS', VARUVILA, NEYYATTINKARA P.O., THIRUVANANTHAPURAM-695121. 7. W.YESUDASAN, RESIDING AT HOUSE NO.IX/193, AVIKUZHY VEEDU, OLATHANNI, NEYYATTINKARA P.O., THIRUVANANTHAPURAM-695121. ADV. SRI.R.S.KALKURA FOR R1-2 SRI.M.S.KALESH FOR R1-2 SRI.HARISH GOPINATH FOR R1-2 SRI.V.VINAY MENON FOR R1-2 SRI.M.AJAY (IRUMPANAM) FOR R1-2 SMT.KVP.JAYALEKSHMY FOR R1-2 SMT.A.V.PRIYA FOR R1-2 SRI.GOKUL DAS V.V.H. FOR R3-7 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 11/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 1242 of 2010 APPENDIX PETITIONERS' EXHIBITS EXT.P1: DTD 29.6.2009, COPY OF THE PLAINT IN O.S.NO.485 OF 2009 MUNSIFF'S COURT, NEYYATTINKARA. EXT.P2: DTD 17.5.2010, COPY OF THE WRITTEN STATEMENT FILED BY DEFENDANTS 1 TO 3 IN O.S.NO.485 OF 2009 MUNSIFF'S COURT NEYYATTINKARA. EXT.P3: DTD 30.9.2009 COPY OF ORER IN I.A.NO.3141 OF 2009 IN O.S.NO.485 OF 2009,ADDL.MUNSIFF'S COURT-II, NEYYATTINKARA. EXT.P4: DTD 17.7.2010, COPY OF APPLICATION I.A.NO.1323 OF 2010 IN C.M.A.NO.13 OF 2010 SUB COURT, NEYYATTINKARA. EXT.P5: DTD 17.7.2010, COPY OF APPEAL MEMORANDUM IN C.M.A.NO.13 OF 2010, SUB COURT, NEYYATTINKARA. EXT.P6: DTD 3.11.2010, COPY OF ORDER IN I.A.NO.1323 OF 2010 IN C.M.A.NO.13 OF 2010 SUB COURT, NEYYATTINKARA. EXT.P7: DTD 3.11.2010, COPY OF JUDGMENT IN C.M.A.NO.13 OF 2010 SUB COURT, NEYYATTINKARA. TRUE COPY PA TO JUDGE. K.T.SANKARAN, J. ------------------------------ O.P(C).No.1242 OF 2010 ------------------------------ Dated this the 11th day of February, 2011 JUDGMENT The petitioners are defendants 1 and 2 in O.S.No.485 of 2009 on the file of the Court of the Additional Munsiff-II, Neyyattinkara. The trial court allowed I.A.No.3141 of 2009 filed by the plaintiffs for temporary injunction. Challenging that order, the petitioners filed CMA No.13 of 2010. There was a delay of 260 days in filing the CMA. As per Ext.P6 order dated 3rd November, 2010, the learned Subordinate Judge dismissed the application for condonation of delay. Consequently, the CMA was dismissed as per Ext.P7 order dated 3rd November, 2010. Exts.P6 and P7 are under challenge in this Original Petition. 2. The petitioners had filed CMA No.6 of 2010 challenging the very same order in I.A.No.3141 of 2009. Along with that appeal, certified copy of the order issued to some other defendants was produced O.P(C).No.1242 OF 2010 2 by the petitioners. The plaintiffs objected to the maintainability of CMA No.6 of 2010 on the ground that certified copy of the order impugned was not the one issued to the appellants in CMA No.6 of 2010. In view of the objection, the petitioners applied for a certified copy of the order of the trial court and filed CMA No.13 of 2010 on 17.7.2010. Later, on 21.7.2010, CMA No.6 of 2010 was withdrawn. 3. The court below dismissed the application for condonation of delay as per Ext.P6 order. The court below considered the matter in great detail and held that sufficient grounds are not made out. 4. It is not in dispute that CMA No.6 of 2010 was filed within time. It is true that the certified copy produced along with CMA No.6 of 2010 was not the one issued to the appellants therein. Later, the petitioners filed CMA No.l3 of 2010 with the certified copy issued to them. But by that O.P(C).No.1242 OF 2010 3 time, the time for filing the CMA had expired and a delay of 260 days occurred. It is not a case were the petitioners did not approach the appellate court well within time. There was a defect, namely, non production of the certified copy issued to the petitioners. 5. In the peculiar facts and circumstances of the case, I am of the view that the delay can be condoned on terms. Accordingly, Exts.P6 and P7 orders passed by the court below are set aside. I.A.No.1323 of 2010 in CMA No.13 of 2010 on the file of the Sub Court, Neyyattinkara, is allowed on condition that the petitioners shall pay costs of Rs.1000/- to the plaintiffs (respondents 1 and 2 in the Original Petition) within a period of two weeks. After the order was dictated, the learned counsel for the petitioners submitted that the costs awarded have been paid to the learned counsel appearing for the respondents 1 and 2, who stated that he received the costs. Accordingly, O.P(C).No.1242 OF 2010 4 I.A.No.1323 of 2010 in CMA No.13 of 2010 referred to above is allowed. The court below shall consider and dispose of the CM Appeal on the merits. K.T.SANKARAN, JUDGE. cms