IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 29TH JANUARY 2008 / 9TH MAGHA 1929 RSA.No. 967 of 2007() --------------------- AGAINST THE ORDER DATED 09/02/2007 IN IA.1596/2005 IN AS.318/2005 of II ADDL.DISTRICT COURT,ERNAKULAM OS.903/1995 of II ADDL.M.C., ERNAKULAM .................... : APPELLANT/PETITIONER/APPELLANT IST DEFENDANT ------------------------------------------------------------- ABDUL RAHIMAN, AGED 72, S/O.ABOOBACKER, 33/1420, THUNDIPARAMBIL HOUSE, VENNALA, KOCHI - 28. BY ADV. SRI.BABU CHERUKARA RESPONDENTS: RESPONDENT/IST RESPONDENT/PLAINTIFF IN O.S. RESPONDENT/2ND RESPONDENT/2ND RESPONDENT/2ND DEFENDANT ------------------------------------------------------------------------------ 1. ASHRAF, AGED ABOUT 52 YEARS, S/O.ABDUL RAHIMAN, VELLEPARAMBIL HOUSE, RESIDING AT "SHARON" KAVANATT, CHAKKARAPARAMBU, THAMMANAM P.O., 2. THE COCHIN CORPORATION, REPRESENTED BY THE SECRETARY, CORPORATION OFFICE, ERNAKULAM. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.251/2008 IN R.S.A.NO.967/2007 29.1.2008 DISMISSED Sd/- M.Sasidharan Nambiar Judge /true copy/ P.S. To Judge M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO. 967 OF 2007 =========================== Dated this the 29th day of January, 20078 JUDGMENT First defendant in O.S.903/1995 on the file of Munsiff Court, Ernakulam is the appellant. First respondent is the plaintiff and second respondent second defendant. A decree for recovery of possession and permanent prohibitory injunction was granted on 23.2.1998. It was not challenged by filing a first appeal in twice. First appeal was filed only in 2005 along with I.A.1596/2005 an application filed under section 5 of the Limitation Act, to condone the delay of 2501 days in filing the appeal. First appellate court dismissed the application and consequently dismissed the appeal. It is challenged in the second appeal. 2. Learned counsel appearing for appellant was heard. 3. Though the trial court granted a decree on 23.2.1998, appeal was filed only in 2005. First R.S.A. No.967/2007 2 appellate court considered the sufficiency of the cause shown by the appellant and found that inordinate delay of 2501 days cannot be condoned. The argument of the learned counsel is that appellant had no grievance against the decree for recovery of possession and his claim is only with regard to the way and to establish the right of way he had filed the suit O.S.1709/2000 and when it was dismissed it was challenged in A.S.36/2002 on its dismissal it was challenged before this court in R.S.A.74/2004 and the claim of appellant was rejected only because of constructive res judicata for not challenging the judgment in this suit and in such circumstance, in the interest of justice, first appellate court should have condoned the delay. 4. First appellate court found that on 8.2.2002 appellant had filed a written statement in O.S.66/2001 that appellant is challenging the judgment in O.S.903/1995. Therefore as rightly found by first appellate court appellant was aware of the necessity to file an appeal challenging the judgment in O.S.903/1995 at least on 8.2.2002 even R.S.A. No.967/2007 3 if his case that he was not aware of the necessity to file an appeal is accepted. Inspite of that he did not file the first appeal. It was filed three years thereafter. The fact that second appeal was dismissed will not enable the appellant to file an appeal after condoning the inordinate delay of 2501 days. In order to condone the inordinate delay sufficient cause is to be shown. There was no impediment for appellant to file a first appeal within time. Even if argument of the appellant that he was not aware of the need to file an appeal is accepted, which cannot be his own written statement filed on 8.2.2002 establish that he was aware of the need. The delay from that day till 2005 cannot be condoned for any reason. In such circumstance, appeal is dismissed as no substantial question of law is involved. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006