IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 WP(C).No. 21150 of 2009(O) --------------------------------------- OS.214/2001 of MUNSIFF COURT,ATTINGAL .................... PETITIONER(S): --------------------- CUBERT, S/O.JOHN, AGED 42 YEARS, VELANVILAKAM BUNGLOW, MENAMKULAM VILLAGE & MURI, KAZHAKKOOTTAM, THIRUVANANTHAPURAM DISTRICT. BY ADV. MR.J.JAYAKUMAR RESPONDENT(S): ------------------------ VISWANATHAN, S/O.KUNJAN, AGED 61 YEARS, JANAKI MANDIRAM, MUNDAIKKAL MURI, VEILOOR VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.21150 of 2009 - O --------------------------------- Dated this the 28th day of July, 2009 J U D G M E N T The writ petition is filed by the defendant in O.S.No.214/2001 on the file of the Munsiff Court, Attingal. Suit was one for declaration, putting up boundary and consequential injunction, and respondent was the plaintiff. Suit after trial was decreed on merits in favour of the respondent. The defendant preferred an appeal with a petition to condone delay of 382 days producing a medical certificate. The learned Sub Judge, considering the delay petition found it meritless and dismissed that petition. Impeaching the propriety and correctness of that order, petitioner has filed this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the counsel for the petitioner. 3. Having regard to the submissions made and the facts and circumstances presented with reference to Ext.P5 order, I find no notice to the respondent is necessary and it is dispensed with. W.P.(C).No.21150 of 2009 - O 2 4. Learned counsel for the petitioner submitted that only the delay petition was considered by the lower appellate court and that too without even numbering the appeal. Since delay petition was dismissed without numbering the appeal, it is the submission of the learned counsel that he is prevented from filing a second appeal. Submission so made is not acceptable. Until and unless the delay is condoned the appeal is still born and the numbering of the appeal will not make any change if the delay petition is dismissed. There is no appeal and as such there cannot be any second appeal also. The petitioner has produced the copy of a medical certificate tendered to condone the delay, in the present writ petition. Ext.P4 is a copy of the medical certificate which shows the doctor advised him to take bed rest for the period from 15.1.2007 to 28.6.2007. The memorandum of appeal filed before the lower appellate which is produced as Ext.P2 would show the appeal was presented much later to the period covered by the medical certificate. Memorandum of appeal shows that it was prepared and signed only on W.P.(C).No.21150 of 2009 - O 3 23.10.2007, and as such it could have been presented before the court only thereafter. The delay sought to be condoned was 382 days, whereas the medical certificate covers a period of only 165 days. No other material was also placed before the appellate court showing sufficient cause for nonpresentation of the appeal beyond the period covered by Ext.P4 medical certificate. When that be so, the dismissal of the delay petition by the lower appellate court from a decree passed in a suit instituted as early as in 2001 cannot be found fault with. I do not find any impropriety or illegality in the order passed by the court below in rejecting the delay petition. The writ petition is devoid of any merit, and it is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-