IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 20TH JANUARY 2011 / 30TH POUSHA 1932 CRP.No. 9 of 2011() ------------------- (IA 4257/2009 IN CMA. 61/2009 OF ADDITIONAL DISTRICT COURT, ERNAKULAM) ------ REVN. PETITIONER: ---------------------------- SOJAN JOSEPH, S/O.V.M.IYPE,VALLAMATTOM, PANDAPPILLY.P.O, MUVATTUPUZHA, ERNAKULAM. BY ADVS. SRI.GEORGE K. VARGHESE SRI.JOSE KURIAKOSE RESPONDENTS: --------------------- 1. DR.E.T.KURIAKOSE, S/O.THOMMAN, AGED 80 , RESIDING AT NETRA BHAVAN, KARAKKATTU ROAD, ERNAKULAM,PIN-682011. 2. DR.THOMAS KURIAKOSE, S/O.E.T.KURIAKOSE, AGED 47, RESIDING AT NETRA BHAVAN, KARAKKATTU ROAD, ERNAKULAM, PIN-682011. ADV. SRI.K.C.CHARLES FOR R1-2 THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK K.T.SANKARAN, J. ------------------------------ C.R.P.No.9 OF 2011 ------------------------------ Dated this the 20th day of January, 2011 ORDER Though notice was served on the respondents by special messenger, there is no appearance for the respondents. 2. The petitioner, the defendant in O.S.No.6 of 2007 on the file of the Court of the II Additional Sub Judge, Ernakulam was set ex parte and the suit was decreed ex parte on 25.9.2008. The petitioner filed I.A.No.7820 of 2008 for setting aside the ex parte decree. That application was dismissed by the order dated 4th February,2009. The petitioner filed an appeal against that order before the High Court on 18.3.2009, after having received the certified copy on 16.2.2009. The appeal filed before the High Court was returned as defective on 16.6.2009 on the ground that an appeal before the District Court was maintainable as the valuation of the suit was below C.R.P.No.9 OF 2011 2 Rs.2 lakhs. Thereafter, on 26.6.2009, the petitioner filed CMA No.61 of 2009 before the District Court. There occurred a delay of 98 days in filing the appeal. For condoning the delay, I.A.No.4257 of 2009 was filed by the petitioner. The court below by the order dated 17th July, 2010, dismissed the application for condonation of delay and dismissed the CMA also. The petitioner challenges the order passed by the court below. 3. The court below dismissed the application for condonation of delay mainly after considering the merits of the case. The suit was filed for arrears of rent. The petitioner was represented by an Advocate. He relinquished the vakalath. According to the petitioner, another counsel was engaged, but he did not file vakalath. Later, a third counsel was engaged, who filed vakalath before the trial court on 18.9.2008, the date on which the suit was listed for trial. An application was filed for adjournment. That application was C.R.P.No.9 OF 2011 3 dismissed. However, the ex parte decree was passed only on 25.9.2008. It was found by the court below that there was no justification for such delay of more than one year on the part of the petitioner to engage another counsel, after relinquishment of the vakalath by the counsel. 4. Another reason stated by the court below for not condoning the delay is that no document was produced by the petitioner to show that he filed appeal before the High Court and it was returned. The petitioner has produced along with this revision Annexure-A1 series to show that an appeal was filed before the High Court on 18.3.2009 and it was returned as defective on 16.6.2009. There is nothing to indicate that there was no bonafides on the part of the petitioner in filing the appeal before the High Court. If the time spent by the petitioner by prosecuting the appeal before the High Court, which was found to be not maintainable, is excluded, the delay will be less. As the C.R.P.No.9 OF 2011 4 relevant documents were produced in the revision, I think it is necessary to direct the court below to consider the matter afresh. The finding on the merits of the case was not justified, while considering the question whether the delay in filing the appeal should be condoned. I am sure the court below referred to the merits of the case to find out whether there are bonafides on the part of the petitioner. 5. Since the petitioner has produced documents to show that he filed appeal before the High Court on 18.3.2009 and it was returned on 16.6.2009, I am inclined to hold that the said period is liable to be excluded in computing the period of limitation for filing CMA before the court below. 6. For the aforesaid reasons, the orders passed by the court below are set aside. The court below shall consider I.A.No.4257 of 2009 in CMA No.61 of 2009 afresh. The period from 18.3.2009 to C.R.P.No.9 OF 2011 5 16.6.2009.(both days inclusive) shall be excluded in computing the period of limitation for filing CMA before the court below. If there is delay in filing the CMA, the court shall consider the question of condonation of delay afresh after affording an opportunity of being heard to both parties. The Civil Revision Petition is allowed as above. K.T.SANKARAN, JUDGE. cms