IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 RSA.No. 950 of 2007() --------------------- AS.47/2004 of SUB COURT, TIRUR OS.99/2000 of MUNSIFF COURT, TIRUR .................... APPELLANTS/APPELLANT/ 2NDDEFENDANT --------------------------------------------------------------------- ASHRAF, AGED 33, S/O. LATE NEYYATHOORU KUNJI MOHAMMED, RESIDING AT NEYYATHOORU HOUSE, PATHAYIKKARA AMSOM DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.HARISH R. MENON SRI.K.T.SHYAMKUMAR RESPONDENTS/RESPONDENTS/PAINTIFS & DEFENDANTS 1, 3, 4 & 5 -------------------------------------------- -------------------------------------------------- 1. NAYYATHOORU THITHU, AGED 63, W/O. KUNNAMPALLY MOHAMMED, RESIDING AT PERUMANNA AMSOM, KLARI DESOM, KUTTIPPALA P.O., TIRUR TALUK, MALAPPURAM DISTRICT. 2. NEYYATHOORU AYISHU, AGED 68, W/O. KODIYATHIL MOHAMMED, RESIDING AT PERUMANNA AMSOM, KLARI DESOM, KUTTIPPALA P.O., TIRUR TALUK, MALAPPURAM DISTRICT. 3. KONDARATHU ASIYA, AGED 49, W/O. NEYYATHOORU KUNJI MOHAMMED, RESIDING AT PERUMANNA AMSOM, KLARI DESOM, KUTTIPPALA P.O., TIRUR TALUK, MALAPPURAM DISTRICT. * 4. ASKAR, AGED 29, S/O. (LATE) KUNJI MOHAMMED, RESIDING AT PERUMANNA AMSOM, KLARI DESOM, KUTTIPPALA P.O., TIRUR TALUK, MALAPPURAM DISTRICT. (R4 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 28.11.2008 IN I.A. NO. 2592/2008) 5. ANEESHA, AGED 27, D/O. (LATE) KUNHI MOHAMMED, RESIDING AT PERUMANNA AMSOM, KLARI DESOM, KUTTIPPALA P.O., TIRUR TALUK, MALAPPURAM DISTRICT. 6. ABDUL LATHEEF, AGED 24, S/O. (LATE) KUNHI MOHAMMED, RESIDING AT PERUMANNA AMSOM, KLARI DESOM, KUTTIPPALA P.O., TIRUR TALUK, MALAPPURAM DISTRICT. ADV. SRI.K.P.SUDHEER FOR R1-2 SMT.PRIYA VIJAYAN FOR R1-2 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No.950 of 2007 ---------------------------------------- Dated this the 13th day of July, 2009 JUDGMENT The Second appeal is directed against the judgment and decree in A.S. No. 47/2004 on the file of the Sub court, Tirur which arises from the judgment and decree in O.S No. 99/2000 on the file of the Munsiff's Court, Tirur. The suit was filed by the plaintiffs/respondents 1 and 2 herein seeking for a decree to set aside the assignment deed No.482/2000 dated 24.02.2000 of S.R.O. Kalpakamcheri, executed in favour of the defendants in the suit. . When the case was taken up by the trial court for haring, the plaintiffs were present and the defendants 1 to 5 were absent and accordingly set exparte. Hence the trial court set aside the assignment deed mentioned above and issued a decree for permanent prohibitory injunction. 2. The 2nd defendant filed appeal challenging the trial court's judgment and decree, before the lower appellate court as A.S. No. 47/2004 supported by an interlocutory application No. 600/2004 praying to condone the delay in filing that appeal. There was a delay of 697 days in filing the said appeal. The lower appellate court noted that the 2nd defendant/appellant is the only one defendant among the defendants in the suit that the 1st defendant is the mother of defendants 2 to 5 and that none of the defendants appeared to prosecute the appeal . Hence the R.S.A. No. 950 of 2007 -2- lower appellate court passed an ex-parte decree. The 2nd defendant contended before the lower appellate court that he was not served with summons. The said contention was negatived by the lower appellate court finding that there was service of summons. The further reason stated by him that he was laid up due to appendicitis, was also not accepted by the lower appellate court finding that there is no sufficient evidence to support the said contention. 3. It is very important to note that the 2nd defendant and other defendants are mother and children. . I am of the view that the reasons stated by the 2nd defendant before the lower appellate court are not enough for not prosecuting the appeal in time. Therefore the lower appellate court rightly dismissed the petition for condonation of delay and consequently the appeal. 4. Before this Court, the second appeal is also filed by the 2nd defendant, belatedly, supported by C.M Application No. 704 of 2007. The petition for condoning the delay was seriously opposed by the counsel for plaintiffs and other defendants. There is a delay of 813 days in filing the second appeal. In paragraphs 2 and 3 of the affidavit filed in support of the petition for condoning the delay, some reasons are stated. On a reading of the averments in the affidavit and taking into account the R.S.A. No. 950 of 2007 -3- conduct 2nd defendant before the lower appellate court, I feel that the reasons stated for not filing the second appeal in time are lame excuses . The recklessness and irresponsibility on the part of the 2nd defendant are already noticed by the courts below and even by this Court. Even according to this Court there are no sufficient grounds are raised for condoning the delay in filing the second appeal. In the result C.M. Application No. 704/2007 is dismissed. Since the Delay condonation petition (C.M. Application No.704/2007) is dismissed the second appeal is also stands dismissed. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A. No. 950 0f 2007 ---------------------------- JUDGMENT 13th July 2009