IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 4TH NOVEMBER 2009 / 13TH KARTHIKA 1931 WP(C).No. 11445 of 2009(O) -------------------------- AGAINST THE ORDER IN AS.128/08 IN IA.977/2008 of III ADDL. DISTRICT COURT, KOLLAM OS.803/2004 of PRL.M.C., KOLLAM .................... PETITIONER(S): --------------- K.K. SUKUMARAN NAIR, PRESIDENT, KANJIRAQCODU, THETTIKUNNU MAHADEVAR TEMPLE, KANJIRACODU, KUNDARA, RESIDING AT USHUS KANJIRACODU, KUNDARA. BY ADV. SRI.V.BHASKARAN PILLAI RESPONDENT(S): --------------- 1. K. CHELLAMMA, PUNNAVILA VEEDU, KANJIRAKODU, MULAVANA VILLAGE, KUNDARA. 2. PARUKUTTY, -DO- 3. LEKSHMI, -DO- 4. BHASURANGI, -DO- 5. MURALEEDHARAN ACHARI, -DO- 6. PRASAD, -DO- 7. BIJU, -DO- 8. SARASWATHY, -DO- 9. MANIYAMMA, -DO- 10. JAGADAMMA, -DO- 11. RAJU, -DO- 12. SANTHAKUMAR, -DO- WPC.11445/09 13. S. UNNIKRISHNAN NAIR, SREEMAPURAM, KANJIRACODU, KUNDARA. 14. ANIVARA (ANIL KUMAR), PUNNAVILA VEEDU, KANJIRACODU, KUNDARA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.11445/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE AFFIDAVIT FILED IN SUPPORT OF THE APPLICATION FOR CONDONING THE DELAY. EXT.P2: COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER IN I.A.NO.977/08 IN A.S.NO.128/08 EXT.P3: COPY OF THE ORDER IN I.A.NO.977/08 IN A.S.NO.128/08 /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.11445 OF 2009 (O) ----------------------------------- Dated this the 4th day of November, 2009 J U D G M E N T Petitioner is the 1st respondent in A.S.No.128 of 2008 on the file of the District Court, Kollam. The above appeal has been filed against the decree and judgment passed in O.S.No.803 of 2004 on the file of the Munsiff Court, Kollam. The appeal was preferred with a petition to condone delay of 279 days, filing an application under Section 5 of the Limitation Act. The application was opposed to by the present petitioner/1st respondent, who was the 1st plaintiff in the suit. There were 12 defendants in the suit and all of them together have filed the appeal canvassing a case that the 8th defendant had been entrusted with the task of prosecuting the appeal. Since the 8th defendant was prevented by unavoidable circumstances in presenting the appeal in time, the delay occurred, was the case canvassed for condonation of the delay of 279 days. Cause shown for condoning the delay was WPC.11445/09 2 challenged by respondents 1 to 3 by filing a counter affidavit by the present petitioner/1st defendant on his own behalf and on behalf of the other two respondents, the plaintiffs in the suit. The learned District Judge allowed the petition to condone the delay vide Ext.P3 order. Propriety and correctness of Ext.P3 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. Though notice was served on some respondents and service effected on all of them by service on their counsel as directed by this Court, none of the respondents has entered appearance. I heard the learned counsel for the petitioner. Perusing Ext.P3 order, it is seen that the learned District Judge has condoned the delay without adverting to the objections raised in Ext.P2 counter affidavit filed by the petitioner/1st respondent. There is no objective assessment as to the cause shown by the petitioner nor advertance to the objections of the respondents in examining the merit of the cause pleaded. Ext.P3 order, therefore, cannot be sustained. WPC.11445/09 3 Setting aside Ext.P3 order, I direct the court below to consider Ext.P1 application moved by the appellants for condoning the delay afresh and dispose it in accordance with law. With the above direction, the writ petition is disposed. S.S.SATHEESACHANDRAN JUDGE prp