IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 8TH MARCH 2010 / 17TH PHALGUNA 1931 RSA.No. 953 of 2009() --------------------- AS.11/2009 of SUB COURT, CHENGANNUR OS.250/1998 of MUNSIFF COURT,CHENGANNUR .................... APPELLANT/APPELLANT/DEFENDANT ------------------------------------------------- K.V.SREEDHARA PANICKER, KALLUZHATHIL, ALA VADAKKUM MURI, ALA VILLAGE, CHENGANNUR, ALAPPUZHA. BY ADV. SRI.P.VINODKUMAR SRI.T.K.AJITH KUMAR SRI.SUSHANTH.J. RESPONDENT/RESPONDENT/PLAINTIFF ----------------------------------- K.V.SULOCHANA, VALIYA KALAYIL, PERUNGALA MURI, MULAKUZHA VILLAGE, CHENGANNUR, ALAPPUZHA. ADV. SRI.N.ASHOK KUMAR THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.953 of 2009E --------------------------------------- Dated this 08th day of March, 2010 JUDGMENT The appeal arises from judgment and decree of learned Sub Judge, Chengannur in A.S.No.11 of 2009 dismissing the appeal as it is filed out of time consequent to the dismissal of I.A.No.96 of 2009 to condone the delay. Respondents filed the suit for fixation of boundary, mandatory injunction and other reliefs claiming that the suit property along with other items originally belonged to the mother of appellant and respondent, Narayani Panickathi and after her death, the legal representatives including parties hereto partitioned the property as per document No.2805 of 2009. In that partition, item No.1, 15 cents was set apart to the share of Narayani Panickathy. She settled the same in favour of the respondent vide Ext.A3, settlement deed dated 09-12- 1996. Property on the west of the said property is item No.2, 23 cents in the partition deed alloted to the appellant. Respondent wanted the boundary of the suit property to be fixed and a mandatory injunction to direct appellant to remove the structures allegedly put up in the suit property. Appellant denied that respondent is the owner in possession of the suit property and claimed that even prior to Ext.A2, partition deed he was in possession of the suit property. Trial court observed that the said plea of appellant is against recital in Ext.A2, partition R.S.A.No.953 of 2009 2 deed to which he also was a party, upheld title of respondent as per Ext.A3, settlement deed and granted reliefs. Appellant challenged that judgment and decree in the first appellate court as A.S.No.11 of 2009 and since there was a delay of 2239 days (more than six (6) years) he filed I.A.No.96 of 2009 to condone that delay. That application was opposed by respondent, did not find favour with the first appellate court and ended in a dismissal. Consequently the appeal also was dismissed. Hence the second appeal. It is contended that first appellate court has not gone into the merit of the case while condoning the delay. According to the learned counsel appellant was under a bonafide belief that since he has filed a separate suit for cancellation of Ext.A3, he could settle the case with the respondent amicably. According to the learned counsel for respondent there is no justifiable reason to condone the delay. 2. While considering the application to condone the delay, court has to consider sufficiency of the ground on facts pleaded and made out in the application as held in Municipal Corporation of Ahamedabad through the Muncipal Commissioner Vs. Voltas Limited (AIR 1995 Guj 29). Hence in deciding whether appellant has sufficient cause not to file the appeal on time, the court is concerned with the plea raised by the appellant in support of the application and find whether there is sufficient explanation for the delay. The question of exercising discretion would arise only when the court finds that R.S.A.No.953 of 2009 3 appellant had sufficient cause not to file the appeal within time. Here the only reason stated in the application in support of the application is that appellant did not prefer the appeal hoping that dispute could be settled amicably but, that settlement did not materialise. I am unable to think that for all the 2239 days appellant has been nursing the thought that he could settle the dispute with the respondent. The huge delay in filing the appeal is not explained. First appellate court found that the reason stated cannot be believed, nor is sufficient cause to condone the delay. I do not find reason to interfere with the finding of the first appellate court, nor is any substantial question of law involved in the matter. Resultantly the second appeal is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/