IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 31ST MAY 2010 / 10TH JYAISTHA 1932 WP(C).No. 10673 of 2009(O) -------------------------- AA.213/2000 of APPELLATE AUTHORITY(LR),THRISSUR .................... PETITIONER(S): --------------- EDAMARATHIL VELU, S/O.VELAYUDHAN, OMACHAPUZHA AMSOM DESOM, P.O.OMACHAPUZHA. BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE SRI.C.M.MOHAMMED IQUABAL RESPONDENT(S): --------------- 1. KODIYERI KALATHINGAL RADHAKRISHNAN, S/O.N.P.KRISHNA MENON, OZHUR AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT. 2. KERALADHEESWARAPURAM OTTU BRAHMASWAM, POST K.PURAM, MALAPPURAM DISTRICT. 3. SAROJINI AMMA, KRISHNA NIVAS, KALATHINGAL HOUSE, POST OZHUR, TIRUR TALUK, MALAPPURAM DISTRICT. 4. KODIYERI KALATHINGAL VISWANATHAN, S/O.N.P.KRISHNA MENON, OZHUR AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT. ADV. SRI.K.JAYAKUMAR, SENIOR ADVOCATE FOR R4 SRI.P.B.KRISHNAN FOR R4 SMT.GEETHA P.MENON FOR R4 SRI.P.M.NEELAKANDAN FOR R4 SRI.V.G.SANKARAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.10673/2009 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT IN OS NO.319/1997 ON THE FILE OF MUNSIFF COURT, TIRUR DATED 23.10.1997 EXT.P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN OS 319/1997 DATED 21.3.1998 EXT.P3 TRUE COPY OF THE PURCHASE CERTIFICATE NO.12110/1978 ISSUED BY SPECIAL TAHSILDAR (LR) DATED 15.5.1978 EXT.P4 TRUE COPY OF THE MEMORANDUM OF APPEAL IN AA NO.86/1998 (AA NO.213/2000) FILED BY FIRST RESPONDENT BEFORE THE COURT OF THE APPELLATE AUTHORITY(LR), KANNUR DATED 17.6.1998 EXT.P5 TRUE COPY OF THE PETITION TO CONDONE DELAY IN AA NO.86/1998 (AA NO.213/2000) FILED BY FIRST RESPONDENT BEFORE THE COURT OF THE APPELLATE AUTHORITY(LR), KANNUR DATED 17.6.1998 EXT.P6 TRUE COPY OF THE COUNTER FILED BY PETITIONER TO CONDONE DELAY IN FILING AA NO.213/2000 ON THE FILE OF THE APPELLATE AUTHORITY (LR), KANNUR DATED 8.4.1999 EXT.P7 TRUE COPY OF THE ORDER DATED 11.11.2008 ON THE FILE OF THE COURT OF THE APPELLATE AUTHORITY (LR),THRISSUR IN AA NO.213/2000 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.10673 of 2009 -------------------------------------- Dated this the 31st day of May, 2010. JUDGMENT This Writ Petition is in challenge of Ext.P7, order condoning delay of about 20 years in filing the appeal from the order of Land Tribunal assigning landlord’s rights in favour of petitioner as per application filed in the year 1976. According to the respondents property belonged to their father, N.P.Krishna Menon as per a partition deed of the year 1946 and in the year 1974, father executed a Will in favour of respondent Nos.1 and 4 as per which they got right, title, interest and possession of the property. It is further case of respondents that on 19.10.1997 when respondent No.1 went to the property for fixing its boundaries, he was obstructed by petitioner claiming right over the property. Respondent No.1 filed O.S.No.319 of 1997 where petitioner contended that he obtained purchase certificate from the Land Tribunal concerning the suit property in O.A.No.2525 of 1976 and thereafter respondent No.1 and others obtained copy of the order and preferred appeal before the appellate authority with an application to condone delay. Application was opposed by petitioner contending that there is no sufficient explanation for the long delay. Appellate authority found as per Ext.P7, order that the delay is explained and allowed the application. That order is under challenge in this proceeding. Learned Senior Advocate appearing for petitioner contended that even the necessary requirements to invoked Section 5 of the Limitation Act are absent in Ext.P5, WP(C) No.10673/2009 2 application for condonation of delay in that it is not even stated how many days delay is involved. According to the learned counsel, appellate authority should not have condoned the delay. Learned counsel for respondents would contend that they had no information about pendency of Original Application and that property belonged to Shri N.P.Krishna Menon as per the partition deed of 1946 who bequeathed the same in favour of respondent Nos.1 and 4 as per the Will of 1974. But in 1976, petitioner has filed the application for assignment of landlord’s rights impleading one N.P.Raman Menon as respondent. It is the contention of learned counsel that N.P.Raman Menon had no right or interest over the property at the time Original Application was filed. It is contended by learned counsel for respondents that none of the respondents got notice about the pendency of application and that purchase certificate is obtained behind their back. 2. It is true that it is not stated how many days' delay is involved. But in paragraph No.4 of Ext.P5, application it is stated that on 19.10.1997 petitioner obstructed respondent No.1 from putting boundary for the property claiming that he is the absolute owner of the property. It was thereafter revealed from the pleadings of petitioner in the civil suit filed by respondent No.1 and others that they got information about the order in the Original Application and issue of purchase certificate. Thereon, they applied for a copy of the order and on getting a copy, the appeal has been preferred. Thus, it is clear from the WP(C) No.10673/2009 3 affidavit of respondents that they got information about the order on Original Application and issue of purchase certificate only from the pleading in the civil suit between the parties. For the mere reason that the number of days involved is not mentioned I do not consider it proper to interfere with the discretion exercised by the appellate authority. Appellate Authority has stated that records reveal that respondent No.1 and others were not aware of assignment and that in the nature of contentions raised by respondent it is only just and proper that an opportunity is given to them to contest the case. Having regard to the facts and circumstances I do not consider it necessary, just or proper to interfere with the discretion exercised by the appellate authority. The Writ Petition is dismissed. THOMAS P.JOSEPH, Judge. cks