IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 22ND SEPTEMBER 2011 / 31ST BHADRA 1933 RSA.No. 496 of 2011() --------------------- AS.60/2009 of SUB COURT,ATTINGAL OS.355/2005 of MUNSIFF COURT,ATTINGAL .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------- VATTAVILA RAVEENDRAN @ RAVEENDRAN, VATTAVILA HOUSE, THACHOORKUNNU, AVANAVANCHERI, ATTINGAL, THIRUVANANTHAPURAM DIST. BY ADV. SRI.M.R.RAJESH RESPONDENT(S): RESPONDENT/DEFENDANT ----------------------------------- 1. P.REMANI, ROHINEES, THOCHOORKUNNU, AVANACANCHERI, ATTINGAL, THIRUVANANTHAPURAM DISTRICT.695001 2. V.RATHEESH, ROHINEES, THOCHOORKUNNU, AVANACANCHERI, ATTINGAL, THIRUVANANTHAPURAM DISTRICT.695001 ADV. SRI.M.DINESH FOR R1-R2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No. 496 of 2011 ............................................ DATED THIS THE 22nd DAY OF SEPTEMBER, 2011 JUDGMENT Plaintiff in O.S.355 of 2005 on the file of Munsiff Court, Attingal is the appellant. Defendants are the respondents. Suit was dismissed. Though an appeal in A.S.60 of 2009 was filed, Sub Judge, Attingal dismissed it after dismissing the petition filed under Section 5 of the Limitation Act. Appeal is filed challenged the decree. 2. Appeal was admitted formulating the following substantial question of law. “Whether the first appellate court was justified in dismissing the application filed under Section 5 of the Limitation Act without considering the sufficiency of the reasons stated in the application.” 3. Learned counsel appearing for appellant and respondents were heard. The only point for consideration is whether first appellate court was justified in dismissing the application filed under Section 5 of the Limitation Act for condoning the delay and RSA 496/2011 2 consequently the first appeal. 4. The application filed under Section 5 of the Limitation Act was dismissed by the learned Sub Judge without showing valid reasons. The order reads. “ The reason stated for condoning the delay of 197 days is no legally sustainable. Hence the application is dismissed”. 5. What was the reason stated for condoning the delay and how it is not legally sustainable are not stated in the order. The learned counsel made available a copy of I.A.1016 of 2009. The affidavit shows that appellant has only explained the delay upto the filing of the copy application contending that the Advocate's clerk did not file the application for getting the certified copy for filing the appeal. The affidavit does not explain the delay, if any, subsequent to the receipt of the certified copy. Learned Sub Judge has not properly considered I.A.1016 of 2009 and dismissed it by a cryptic order. Hence appeal could only be allowed directing the first appellate court to reconsider I.A.1016 of 2009 in accordance with law. RSA 496/2011 3 6. Appeal is allowed. The decree and judgment in A.S.60 of 2009 on the file of Sub Court, Attingal are set aside. A.S.60 of 2009 is restored to the file and remanded to Sub Court, Attingal for fresh disposal. Learned Sub Judge is directed to dispose I.A.1016 of 2009, in accordance with law. Learned Sub Judge has to pass a reasoned order. Parties are directed to appear before Sub Court, Attingal on 18.10.2011. Communicate the judgment to the Sub Judge forthwith. M.SASIDHARAN NAMBIAR, JUDGE lgk