IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 11TH DECEMBER 2009 / 20TH AGRAHAYANA 1931 RSA.No. 1124 of 2008() ---------------------- A.S.No.229/08 dated 01-09-2008 OF DISTRICT JUDGE, KOTTAYAM OS.93/2002 of MUNSIFF COURT, ETTUMANOOR .................... APPELLANTS/APPELLANTS/NOT PARTY IN O.S:- ----------------------------------------- 1. DR.K.GOPINANTHAN NAMBIAR S/O.KUNJIRAMAN NAMBIAR, "ASWATHY"SIVAGIRI NAGAR CHOVVA, KANNUR. 2. DR.N.K.SASEENDRAN S/O.ACHUTHAN VYDYAR INDRAPRASTHAM, POST MOWANCHERY, KANNUR. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANTS 1 TO 3: ------------------------------------------------------- 1. DR.K.J.JAMES, S/O.K.V.JOSEPH MURIKKUMPUZHA, KATTAMPALLY, MEENACHIL VILLAGE, MEENACHIL TALUK. 2. INDIAN MEDICAL ASSOCIATION(IMA) KERALA STATE BRANCH IMA KSB HEAD QUARTERS ANAYARA P.O.,THIRUVANANTHAPURAM. 3. DR.DOMINIC PALATTU BINOY BHAVAN KANAKKARI KARA KANAKKARI VILLAGE, IMA STATE JOINT ECRETARY. 4. DR.SIBY JOSEPH CASUALITY MEDICAL OFFICER THELLAKOM P.O., ETTUMANOOR . ADV. SRI.A.BALAGOPALAN FOR R3 SRI.A.RAJAGOPALAN FOR R3 SRI.RAJAGOPAL.G FOR R3 SRI.SAJEEVU MATHEW FOR R2 SRI.VPK.PANICKER FOR R2 SMT.RENU.K.MANI FOR R2 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.1124 of 2008A --------------------------------------- Dated this 11th day of December, 2009 JUDGMENT Respondent No.1 instituted O.S.No.93 of 2002 in the court of learned Munsiff, Ettumanoor challenging amendment of the bye-law of the Indian Medical Association, respondent No.2 in this appeal. That suit was dismissed after contest. Respondent No.1, plaintiff did not prefer an appeal. Appellants who are not parties to the suit preferred A.S.No.229 of 2008 in the court of learned District Judge, Kottayam with I.A.Nos.1679 of 2007 to grant leave to prefer the appeal and 1680 of 2007 to condone the delay of 606 days in filing that appeal. Learned counsel for appellants submitted that I.A.No.1679 of 2007 was allowed but I.A.No.1680 of 2007 was dismissed after hearing the contesting respondents. Consequently the appeal was dismissed and hence the second appeal. The substantial question of law framed for a decision is whether the first appellate court having granted leave to the appellants to file appeal against the decree passed by trial court to which they were not parties was justified in dismissing the application to condone the delay in filing the appeal. 2. Respondent Nos.2 and 3 have appeared through counsel. Respondent No.1, plaintiff in the trial court did not appear in the first appellate court pursuant to the notice served on him on I.A.No.1680 of 2007. Respondent No.4 remained ex parte in the trial court. In that R.S.A.No.1124 of 2009 2 situation, notice to respondent Nos.1 and 4 is dispensed with in view of Order 41 Rule 14 (4) of the Code of Civil Procedure. 3. Appellants are members of Kannur branch of respondent No.2, the Indian Medical Association. The suit as I stated above is challenging amendment to the bylaw of respondent No.2. According to the appellants though a paper publication was made as per order of the trial court about institution of the suit, that publication was made only in Kottayam district and hence appellants who are at Kannur were unaware of institution of the suit. There was another litigation involving respondent No.2 in the Munsiffs' Court, Kannur where also appellants were not parties. That suit was disposed of pursuant to the judgment and decree in the case on hand. It is then only that appellants learned about refusal of the trial court to allow reliefs prayed for, obtained a certified copy of the judgment and decree of the trial court and without loss of time moved the appeal before the first appellate court, of course with delay of 606 days. Learned District Judge was not inclined to condone the delay and dismissed the application. Learned counsel for appellants contended that in so far as first appellate court had allowed I.A.No.1679 of 2007 permitting the appellants who were not parties to the suit to move the appeal, same criterion ought to have been applied in the matter of condonation of delay in preferring the appeal taking note of the fact that appellants R.S.A.No.1124 of 2009 3 were not aware of pendency of the suit or the judgment and decree passed therein. In proof of the contention of the appellants that they were unaware of the pendency of the suit they have produced along with I.A.No.722 of 2009, a photocopy of the paper containing in the publication and the photocopy of the bill issued for that publication. Learned counsel appearing for respondent No.2 opposed the appeal. According to the learned counsel, there is no sufficient cause made out to condone the huge delay. It is submitted by learned counsel that averments in the affidavit of appellants are not correct. The delay involved is 630 days and not 606 days as contended by the appellants. Each days delay and at any rate, the delay of 24 days is not explained. It is also submitted by learned counsel that pursuant to amendment of the bye-law, several activities have been carried on by respondent No.2 and if that amendment is unsettled, it will cause much inconvenience to respondent No.2. 4. At this stage I am not at the question whether trial court was justified in dismissing the suit challenging the amendment or, whether the amendment made to the bye-law is correct or not. That is a matter which appropriate court has to consider at the appropriate stage. Now I am concerned only with the question whether delay is to be condoned. For that, appellants have to show sufficient cause. Documents produced by the appellants along with I.A.No.722 of 2009 R.S.A.No.1124 of 2009 4 show that though a paper publication concerning institution of O.S.No.93 of 2002 was made in a vernacular daily, that publication was made only in Kottayam district while appellants belong to Kannur district. Paper publication was not effected in any district other than Kottayam district. Therefore when appellants say that they were unaware of O.S.No.93 of 2002, I have no reason to disbelieve them. There is no reason to think that delay was willfully caused. 5. Appellants have stated that on 08-11-2007 they learned about the judgment and decree in O.S.No.93 of 2002 while perusing the judgment and decree in a suit filed in the court of learned Munsiff, Kannur. But, it is not stated when actually appellants learned about judgment and decree of the suit filed in the Munsiff's Court, Kannur and when application for a copy of judgment and decree of the case on hand was moved. It appears that there was some latches on the part of appellants in that regard at least after learning about the decision in this case. But minor latches are to be corrected by the common curative of costs which in the facts and circumstances is fixed as Rs.2,000/-. 6. In the light of my above discussion I am inclined to think that the first appellate court ought to have allowed the application at least on terms of cost. The substantial question of law framed above is answered accordingly. R.S.A.No.1124 of 2009 5 Resultantly the second appeal is allowed in the following lines. (i) Judgment and decree in A.S.No.229 of 2008 will stand set aside and I.A.No.1680 of 2007 will stand allowed on condition that appellants paid to respondent No.2 through his counsel in this court Rs.2,000/- (Rupees Two Thousand Only) by way of cost directly or by demand draft within fifteen days from this day and memo evidencing acceptance of the amount or demand draft is produced by the appellants in this court within the said period of fifteen days. In case of failure, the second appeal will stand dismissed in confirmation of the judgment and decree and the order on I.A.No.1680 of 2007. (ii) In case of compliance of condition No.1 stated above, appeal will stand remitted to the court of learned District Judge, Kottayam for hearing of the appeal under Order 41 Rule 11 of the Code of Civil Procedure and to pass appropriate orders. (iii) In case of compliance of the condition as stated above, appellants shall appear in the court of learned District Judge on 15-01-2010. I make it clear that it will be open to the contesting respondents also to appear in that Court on that day to avoid delay in issuing R.S.A.No.1124 of 2009 6 notice to them in case learned District Judge decided to admit the appeal after hearing appellants under Order 41 Rule 11 of the Code of Civil Procedure. (iv) The question whether notice of the appeal (if admitted) has to be issued to such of the respondents who have not appeared on I.A.No.1680 of 2007 will be decided by the learned District Judge. Post the appeal on 04-01-2010. THOMAS P JOSEPH, JUDGE Sbna/ In compliance with the direction in the judgment dated 11/12/2009 in R.S.A.No.1124/2008 the counsel for the appellant has paid Rs.2,000/- (Rupees Two Thousand Only) as cost to the counsel for the 2nd respondent within the stipulated time, vide D.D.No.717910 dated 12/12/2009 drawn on North Malabar Gramin Bank, Pallikunnu branch, Kannur and recorded as per order dated 05/01/2010. Sd/- Registrar (Judicial)