IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 22ND OCTOBER 2008 / 30TH ASWINA 1930 C.R.P.No. 806 of 2005(H) -------------------------------- AGAINST THE ORDER DATED 05/04/2005 IN IA 295 OF 2004 IN A.S.NO. 36 OF 2004 ON THE FILE OF DISTRICT COURT, PALAKKAD. .................... REVISION PETITIONERS/ RESPONDENT NO.1 & SUPPL. RESPONDENTS 5 TO 9: --------------------------------------------------------------------------------------------------------------- 1. CHELLAMUTHU, S/O. KUNJAN, KOTTILPARA, KOZHIPARA, ELAPULLY, PALAKKAD DIST. 2. KANTHU, W/O. LATE KOSHU, MENONPARA, VADAKARAPATHY, PALAKKAD TALUK, PALAKKAD DIST. 3. SAKUNTHALA, D/O. KANTHU, -DO- -DO- 4. SELVI, D/O.KANTHU, -DO- -DO- 5. SELVAKUMAR, S/O. KANTHU, -DO- -DO- 6. BHAGYAVATHI, D/O. KANTHU, -DO- -DO- BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P SRI.M.V.BIPIN. RESPONDENT/ PETITIONER/ RESPONDENTS 3 & 4: --------------------------------------------------------------------------- 1. PONNUCHAMI, S/O. KUNJAN, KOTTILPARA, KOZHIPARA, ELAPULLY, PALAKKAD TALUK & DISTRICT. 2. THANKA, D/O. KUNJAN, -DO- -DO- 3. SATYABHAMA, W/O. KRISHNAN, -DO- -DO- ADV. SRI. RAJESH SIVARAMANKUTTY - R1 THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. --------------------------------- C.R.P. No.806 of 2005 --------------------------------- Dated this the 22nd day of October, 2008 O R D E R Counsel takes notice for the first respondent. Heard both sides. 2. Petitioners who are respondents 1 and 5 to 9 in I.A.No.295 of 2004 in A.S.No.36 of 2004 on the file of District Court, Palakkad are aggrieved by the order dated 05.04.2005 condoning delay of 749 days in prefering the appeal. Learned counsel for the petitioners contented that it was without properly considering the objection raised by the petitioners and without even recording evidence that learned District Judge allowed I.A.No. 295 of 2004. According to the learned counsel, reports submitted by the Advocte Commissioner in the trial court would show that atleast on two occasions, commissioner had attempted to serve notice of inspection on the first respondent/appellant but he refused that notice. It is also contended by learned counsel that petitioners have incurred huge exepenses which are all going to be wasted by allowing I.A.295 of 2004. Counsel for first respondent C.R.P. No.806/2005 2 contented that no serious objection was arised in the District Court while I.A.No.295 of 2004 came up for consideration and that there was no request even from the petitioner's side to record evidence on the application. 3. Case pleaded by the first respondent/appellant in I.A.No.295 of 2004 is that he has been laid up with tuberculosis and other illness and was unable to move about even and hence he could not file appeal in time. It is seen from order under challenge that the first respondent/appellant had produced the discharge summary issued to him from Unity Hospital, Kozhijanpara and a few other medical certificates. Discharge summary stated that the first respondent had undergone treatment as an inpatient in Unity Hospital from 24.09.2003 to 04.10.2003. Medical certificate stated that the first respondent had undergone treatment for severe malnutrition, general body emaciation and pulmonary tuberculosis with diabetis meletus since December 2002 and was advised bed rest for a period of 1 ½ years (upto May, 2004). Discharge summary and medical certificates were not proved in the proper manner by examining the medical officers concerned. Learned C.R.P. No.806/2005 3 District Judge however considered those documents and decided to condone the delay. 4. That, first respondent/appellant when attempted to be served with notice of inspection by the commissioner cannot mean that his contention regarding illness and treatment are not correct. What is required to be proved under section 5 of the Limitation Act is sufficient cause for the delay. The word "sufficient cause" as has to be literally construed to advance the cause of justice. Materials on record discloses that the first respondent/appellant had been undergoing hospitalisation and treatment and was advised bed reast on account of serious illness. I am not inclined to think that there was any gross negligence or misconduct on the part of the first respondent/appellant in not filing the appeal in time requiring its rejection at the threshold on that ground of delay. But the documents relied on by learned District Judge were not marked in evidence. No oral evidence also was let in. Minor latches if any are to be corrected by common curative of costs. In the facts and circumstances, I am inclined to think that the minor latches on the part of the first respondent/appellant could be corrected by directing him to C.R.P. No.806/2005 4 pay cost of Rs.1,000/-(Rupees One Thousand Only) to the petitioners. Resultantly, this revision petition is allowed in part in the following lines. Order dated 5/04/2005 in I.A. No.295 of 2004 in A.S. No. 36 of 2004 on the file of District Court, Palakkad is modified to the extent that the said application will stand allowed on condition that the first respondent/ appellant deposited in that court Rs.1,000/- (Rupees one thousand only) for payment to the petitioners as costs within a period of one month from this day. If said condition is not complied, I.A. No.295 of 2004 will stand dismissed. I.A. No.2253 of 2005 shall stand dismissed. THOMAS P. JOSEPH, JUDGE scm