IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 3RD SEPTEMBER 2010 / 12TH BHADRA 1932 WP(C).NO. 7097 OF 2010(O) ------------------------- AGAINST THE ORDER IN IA 245/2001 IN AA.152/2001 OF APPELLATE AUTHORITY, KANNUR .................... PETITIONER(S): --------------- 1. B.NARAYANAN S/O.MAKKAKODAN AMBUNHI, MELAMKOTT, BALLA VILLAGE, HOSDURG TALUK, PO, BALLA, KASARAGOD DISTRICT. 2. B.CHANDRAN, S/O.MAKKAKODAN AMBUNHI, MELAMKOTT, BALLA VILLAGE HOSDURG TALUK, PO, BALLA, KASARAGOD DISTRICT. 3. V.KUNHAMBU,(WRONGLY SHOWN AS BABU IN THE CAUSE TITLE OF THE ORDER) S/O.MAKKAKODAN AMBUNHI, MELAMKOTT, BALLA VILLAGE HOSDURG TALUK, PO, BALLA, KASARAGOD DISTRICT. 4. V.VENUGOPALAN(WRONGLY SHOWN AS VENU IN THE CAUSE TITLE OF THE ORDER) S/O.MAKKAKODAN AMBUNHI, MELAMKOTT, BALLA VILLAGE HOSDURG TALUK, PO, BALLA, KASARAGOD DISTRICT. BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR RESPONDENT(S): --------------- 1. GANESH SHENOY, S/O.LATE MUKUNDA SHENOY,MELAMKKOTT, BALLA VILLAGE HOSDURG TALUK, PO, BALLA, KASARAGOD DISTRICT. 2. K.BALACHANDRA SHENOY S/O.LATE MUKUNDA SHENOY,MELAMKKOTT, BALLA VILLAGE HOSDURG TALUK, PO, BALLA, KASARAGOD DISTRICT. 3. PPORNIMA SHENOY, S/O.LATE MUKUNDA SHENOY,MELAMKKOTT, BALLA VILLAGE HOSDURG TALUK, PO, BALLA, KASARAGOD DISTRICT. 4. KANNAN, S/O.MAKKAKODAN AMBUNHI,MELAMKKOTT, BALLA VILLAGE HOSDURG TALUK, PO, BALLA, KASARAGOD DISTRICT. 5. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SHRI P.R. JAYAKRISHNAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF AFFIDAVIT AND PETITION I.A. NO.245 OF 2001 IN A.A. NO.152 OF 2001 FILED BEFORE THE APPELLATE AUTHORITY (LR), KANNUR. EXHIBIT P2 TRUE COPY OF OBJECTION FILED IN I.A. NO.245 OF 2001 IN A.A. NO.152 OF 2001, APPELLATE AUTHORITY (LR), KANNUR. EXHIBIT P3 TRUE COPY OF ARGUMENT NOTES FILED BY RESPONDENTS 2, 3, 4 & 6 IN I.A.NO.245 OF 2001 IN A.A. NO.152 OF 2001 APPELLATE AUTHORITY (LR), KANNUR. EXHIBIT P4 TRUE COPY OF ORDER DATED 8.12.2009 IN I.A. NO.245 OF 2001 IN A.A. NO.152 OF 2001, APPELLATE AUTHORITY (LR), KANNUR. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.7097 of 2010 ==================================== Dated this the 03rd day of September, 2010 J U D G M E N T This Writ Petition is in challenge of Ext.P4, order passed by the Appellate Authority, Kannur on I.A. No.245 of 2002 in A.A. No.152 of 2001 condoning the delay of 25 years in filing that appeal. Proceedings started before the Land Tribunal, Kanhangad with petitioners' father who claimed to be a cultivating tenant in respect of 19 cents in R.S.No.126/3 of Bella Village filing an application for purchase of landlord’s right as O.A. No.1412 of 1976. Since the jenmy of the property, Vinayaka Shenoy had expired even before filing of I.A. No.1412 of 1976 petitioners’ father impleaded Suseela Bai, the widow of the said Vinayaka Shenoy as respondent. According to the petitioner notice was served on Suseela Bai but she remained ex parte and thereon Land Tribunal as per on order 22.5.1976 allowed O.A. No.1412 of 1976 and issued purchase certificate to petitioners' father. In the meantime petitioner’s father died. After the death of Suseela Bai, his son Mukunda Shenoy also died. After 25 years of issue of purchase certificate legal representative of Mukunda Shenoy filed W.P(C) No.7097 of 2010 -: 2 :- A.A. No.152 of 2001 with I.A. No.245 of 2002 to condone the delay of about 25 years. They claimed that they were not parties in the proceeding before the Land Tribunal and hence they did not get opportunity to file objection against the issue of purchase certificate in favour of petitioners’ father. That contention was accepted by the Appellate Authority and delay was condoned. Learned counsel for petitioners contends that Appellate Authority has not considered the core issue involved, whether there was sufficient cause for condonation of delay. It is also contended that respondents being only legal represents of Suseela Bai to whom notice in O.A.No.1412 of 1976 had been served it was not necessary that respondents were to be impleaded as parties in O.A.No.1412 of 1976. 2. Respondents though served on this Writ Petition remain absent. It is seen from Ext.P4, order that the delay was condoned for the reason that respondents were not parties in the proceedings in the Land Tribunal and they did not get opportunity to raise objection against grant of purchase certificate. That does not appear to be a sufficient cause for condonation of the delay in that going by the contention of petitioners, predecessor-in- interest of respondents (Suseela Bai) was a party to O.A. No.1412 W.P(C) No.7097 of 2010 -: 3 :- of 1976 and she was served with notice of the said proceeding. Appellate Authority has not considered the question whether respondents were required to be made parties in O.A. No.1412 of 1976 or whether they could only claim to be legal representatives of deceased Suseela Bai. If they were not required to be parties in O.A. No.1412 of 1976 on their own, Appellate Authority had to consider whether if notice had been served on Suseela Bai in O.A. No.1412 of 1976, respondents could claim that they had no notice and hence the delay. That question has not been decided by the Appellate Authority. Hence the order cannot be sustained. Resultantly, this Writ Petition is allowed by way of remand. Exhibit P4, order is set aside and I.A. No.245 of 2002 in A.A. No. No.152 of 2002 is remitted to the Appellate Authority (LR), Kannur for fresh consideration and decision of the question whether respondents had sufficient cause in not filing the appeal within the prescribed time. THOMAS P. JOSEPH, JUDGE. vsv