IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 27TH JULY 2011 / 5TH SRAVANA 1933 SA.No. 147 of 2000(A) (AS NO.24/93 OF SUB COURT, KOTTARAKKARA OS NO.50/89 OF MUNSIFF'S COURT, KOTTARAKKARA) --------------------- APPELLANTS/APPELLANTS/DEFENDANTS ------------------------------------------------------------- 1. KERALA AGRO INDUSTRIES CORPORATION L IMITED KISSAN JYOTHI, FORT, THIRUVANANTHAPURAM REP BY ITS MD 2. THE ASST. ENGINEER KERALA AGRO INDUSTRIES CORPORATION LTD NEELESWARAM, KOTTARAKKARA BY ADV. A.M.SHAFFIQUE RESPONDENT./RESPONDENT/PLAINTIFF --------------------------------------------------------- A J VARGHESE AGED ABOUT 55 YEARS RESIDING AT AVICOTTU HOUSE KUNDARA NEAR LMS HOSPITAL ADV. SRI.S.EASWARAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27.07.2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- SA No.147 of 2000-A ------------------------------------- Dated this the 27th day of July 2011 Judgment The defendants in OS No.50/89 have come up in appeal. The parties and facts are hereinafter referred to as they are available before the trial court. 2. This appeal can be disposed of on a very short ground and therefore, the facts absolutely necessary are only being referred to in this judgment. 3. It appears that the plaintiff purchased a 1HP pump set from the defendants under hire purchase scheme. Since the pump was not in a working condition, the plaintiff filed a complaint and he sought replacement of the same. Thereafter, the defendants took the pump set, repaired it and returned to the plaintiff. By this time, the plaintiff had Rs.3169.80 by way of four instalments. Even after getting the pump set repaired, it developed frequent trouble and it could not be put to use. In spite of repeated SA 147/00 2 demands, the defendants did not do anything in the matter . Therefore, the plaintiff was constrained to lay the suit for rescission of the hire purchase contract and for consequential reliefs. 4. The defendants resisted the suit. They denied that there was any defect in the pump set supplied by them and the pump set was handed over to the plaintiff on 17.02.1984. As soon as the defect was brought to the notice of the defendants, the unit was repaired and returned to the plaintiff. Contending that the plaintiff has no cause of action, they prayed for dismissal of the suit. 5. On the pleadings, necessary issues were raised. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A10 from the side of the plaintiff. The defendants had DW1 examined and Exts.B1 to B3 marked. 6. On an appreciation of the evidence in the case, the trial court accepted the finding of the claim put forward by the plaintiff and granted a decree as prayed for. SA 147/00 3 7. The aggrieved defendants carried by the matter in appeal as AS No.24/93 before the Sub Court, Kottarakkara. It appears that there was a delay of two days in filing the appeal and a petition for condonation of delay was also filed along with the appeal. The lower appellate court dismissed the petition and consequently, the appeal also. Hence the second appeal. 8. Notice is seen issued on the following questions of law raised in the second appeal : 1.Whether the lower appellate court was justified in dismissing the application to condone the delay only for 2 days in filing the appeal on highly hypertechnical grounds and especially an affidavit filed by the counsel for the appellants ? 2.Is not the lower appellate court unjustified in dismissing the application to condone the delay of 2 days when the appellants had valid and justifiable grounds to challenge the decree of the trial court ? 3.Whether the trial court was justified in permitting the SA 147/00 4 plaintiff to rescind the contract of hire purchase after using the pump set for more than 3 years ? 4.Whether the plaintiff was entitled to repudiate the contract under Section 12(3) of the Sale of Goods Act ? 5.Whether the plaintiff is entitled to refuse the payment of the hire purchase instalments by invoking Section 39 of the Contract Act ? 6.Whether the contract between the parties were terminable under Section 27 of the Specific Relief Act ? 9. It is unnecessary to go into the details of the case, for the simple reason that one cannot justify the manner of disposal of the case by the lower appellate court. There was only two days' delay in filing the appeal and the defendants had filed an affidavit, explaining the reasons for the delay. The lower appellate court, for insignificant reasons, dismissed the petition for condonation of delay and consequently, the appeal. 10. There has been no consideration of the appeal on merits. The reasons given for dismissing the SA 147/00 5 petition for condonation of delay are clearly unsustainable both on facts and in law. Sufficient reasons had been shown by the appellant for the delay that occasioned in filing the appeal and in all fairness, the lower appellate court ought to have condoned the delay and the appeal heard on merits. In the result, this appeal is allowed. The judgment and decree of the lower appellate court are set aside and the matter is remanded to the lower appellate court for fresh consideration in accordance with what is stated above. The parties shall appear before the lower appellate court on 18.08.2011. The lower appellate court may make every endeavour to dispose of the suit as expeditiously as possible, at any rate, within three months from the date of appearance of parties before court. Forward a copy of the judgment to the lower appellate court. P.Bhavadasan, Judge sta SA 147/00 6 SA 147/00 7