IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY, THE 23RD DAY OF JUNE 2022 / 2ND ASHADHA, 1944
FAO NO. 31 OF 2021
AGAINST THE ORDER DATED 8/1/2021 IN I.A.NO.1748 OF 2018 IN
I.A.NO.1746 OF 2018 IN AS 91/2010 OF ADDITIONAL DISTRICT COURT ,
KOTTAYAM
APPELLANTS/PETITIONERS:
1 KUMARAN, S/O.ITTY, DEVASWOM KARIYIL, KATTITHARA BHAGOM,
ENADI KARA, CHEMPU VILLAGE,
KOTTAYAM DISTRICT, PIN-686 608.
2 BHAIMY, W/O.KUMARAN, DEVASWOM KARIYIL, KATTITHARA
BHAGOM, ENADI KARA, CHEMPU VILLAGE,
KOTTAYAM DISTRICT, PIN-686 608.
BY ADVS.
B.PREMNATH (E)
SHRI.SARATH M.S.
RESPONDENT/RESPONDENTS:
THE NATASHA CONSTRUCTION PRIVATE LIMITED
HILL ROAD, BANDRA(W), MUMBAI-400 050, REPRESENTED BY
ITS REPRESENTATIVE (*K.K.KUTTAPPAN, S/O.KANNAN, AGED
79, KOMATH HOUSE, PADAMUGAL KARA, VAZHAKKALA VILLAGE,
KANAYANNUR TALUK, KOCHI, ERNAKULAM.
(SUBSTITUTED SRI. V.B.BALAGOPAL, S/O BHASKARANUNNI,
AGED 60, GOKULAM HOUSE, MEC ROAD, THRIKKAKARA DESOM,
VAZHAKKALA VILLAGE, KANAYANNUR TALUK, ERNAKULAM,
PIN-682021 AS THE PERSON REPRESENTING THE RESPONDENT
COMPANY "NATASHA CONSTRUCTION PRIVATE LIMITED, HILL
ROAD, BANDRA(W), MUMBAI-400050, IN THE PLACE OF SRI.
KUTTAPPAN NOW SHOWN TO BE REPRESENTING THE RESPONDENT
COMPANY IN THE APPEAL, AS PER THE ORDER DATED
22/10/2021 IN IA 2/2021.)
BY ADVS.S.RANJIT
GOKUL DAS V.V.H.
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR HEARING ON
23.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
FAO NO. 31 OF 2021 2
JUDGMENT
The appeal preferred by the defendants against the decree and judgment of the trial court, was dismissed due to non appearance by the first appellate court. Subsequently, an application for restoration along with an application for condonation of delay was filed, which were dismissed by the first appellate court on the reason that there is no sufficient ground to condone the delay. Admittedly, the delay comes to 1295 days. It is well settled that when there is sufficient reason to condone the delay, the court shall bound to condone the same. But when there is no sufficient reason it is discretionary and the court has to exercise the discretion in order to advance justice and not to defeat. Unless there is gross negligence to the extent of outweighing the advantage that may be obtained by the petitioner by the said proceedings, the court has to condone the delay by personalizing the party in terms of money. As such, there is failure on the part of the first appellate court to apply the principle in its correct perspective. Taking into consideration the number of days, which comes to 1295, FAO NO. 31 OF 2021 3 the delay is hereby condoned by ordering an amount of Rs.5000/- by way of cost, which shall be given or deposited before the trial court within 15 days from the date of appearance of the parties. On such deposit, the delay will stand condoned. The appeal will stand restored to file.
The appeal is allowed conditionally as stated above. The parties shall appear before the first appellate court on 12/7/2022. The first appellate court shall expedite the disposal of the appeal at the earliest within two months from that day.
Sd/-
P.SOMARAJAN JUDGE msp FAO NO. 31 OF 2021 4 APPENDIX OF FAO 31/2021 PETITIONER ANNEXURES:
ANNEXURE I CERTIFIED COPY OF ORDER DATED 08.01.2021 IN IA NO.1 OF 2020 IN AS NO.91 OF 2010 BEFORE THE ADDITIONAL DISTRICT COURT-IV, KOTTAYAM. ANNEXURE II TRUE COPY OF THE JUDGMENT DATED 27.05.2015 IN AS NO.91 OF 2010 BEFORE THE ADDITIONAL DISTRICT COURT-IV, KOTTAYAM.
ANNEXURE III CERTIFIED COPY OF THE EP NO.61/2018 IN OS 8/2009 ON THE FILE OF THE MUNSIFF'S COURT, VAIKOM DATED 11.04.2018.