IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 13TH AUGUST 2009 / 22ND SRAVANA 1931 RSA.No. 849 of 2009() --------------------- AS.51/2008 of DISTRICT COURT,THODUPUZHA OS.162/2004 of MUNSIFF'S COURT, DEVIKULAM .................... APPPELLANT/APPELLANT/PLAINTIFF: ---------------------------------------- BABU.P.KURIAKOSE, S/O.KURIAKOSE, PALLATHUKUDI HOUSE, ADIMALI P.O., MANNAMKANDAM VILLAGE, DEVIKULAM TALUK, IDUKKI DISTRICT. BY ADV. SRI.THAMPAN THOMAS SMT.JANCY ALEX RESPONDENTS/ RESPONDENTS/DEFENDANTS: -------------------------- 1. DIVISIONAL FOREST OFFICER, MUNNAR DFO OFFICE, DEVIKULAM IN KDH VILLAGE. 2. STATE OF KERALA, REP.BY DISTRICT COLLECTOR, IDUKKI CIVIL STATION, KUYILIMALA, PAINAVU. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. --------------------------- R.S.A.NO.849 OF 2009 --------------------------- DATED THIS THE 13TH DAY OF AUGUST, 2009 JUDGMENT Plaintiff in O.S.No.162/2004 on the file of the Munsiff's Court, Thodupuzha is the appellant. This appeal is directed against the judgment and decree in A.S.No.51/2008 on the file of the District Court, Thodupuzha. The suit was filed for permanent prohibitory injunction restraining the defendants, namely, Divisional Forest Officer, Munnar and the State of Kerala, from interfering with the possession and enjoyment of the plaint schedule property. The suit was dismissed by the trial court. The plaintiff filed an appeal as A.S.No.51/2008 belatedly and therefore a petition was filed for condonation of delay of 501 days in filing the same. The Appellate Court did not accept explanation and cause shown for condonation of delay and dismissed the delay petition. Consequently, the appeal was also dismissed. Hence, the Second Appeal. -2- R.S.A.No.849/2009 2. I have gone through the averments in the affidavit filed by the appellant in support of the application for condonation of delay in filing the first appeal. It is stated that the delay was occasioned due to the communication gap between the Lawyer's Office and the appellant. According to him, he got information very late, since he did not receive the letter sent by the Advocate Clerk in time. Later, he received a letter from the Advocate Clerk requesting him to receive the connected case bundle, since the case was disposed of long back. Only on receipt of the said letter the appellant came to know that the case was disposed of much earlier. This is the reason stated in the affidavit filed in support of the delay petition. 3. Though the explanation offered and the cause shown are not fool proof, in the interest of justice and for the reason that the dispute requires consideration on merits, the Lower Appellate Court ought to have condoned the delay on terms and considered the matter on merits. But unfortunately, the Lower Appellate -3- R.S.A.No.849/2009 Court dismissed the delay condonation petition stating that the appellant has miserably failed to explain the reason for the inordinate delay in filing the appeal. 4. In view of the facts and circumstances stated above, after taking a liberal view in the matter, in the interest of justice, I am of the view that the matter should have been decided on merits. Therefore, I allow the delay petition ( I.A.No.477/2008), set aside the judgment and decree passed by the Lower Appellate Court and remand the case for fresh consideration. The Lower Appellate Court shall take back the appeal to file and decide the same on merits. Appeal is disposed of as above. HARUN-UL-RASHID, Judge. kcv.