Shemeer vs Ali

Kerala High Court

Shemeer vs Ali on 21 May, 2024

Author: Kauser Edappagath

Bench: Kauser Edappagath

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

          THE HONOURABLE DR. JUSTICE    KAUSER EDAPPAGATH

     TUESDAY, THE 21ST DAY OF MAY   2024 / 31ST VAISAKHA, 1946

                       OP(C) NO. 703 OF 2024

 AGAINST THE ORDER DATED 12.12.2023 IN IA 2/2021 IN POP NO.256 OF
  2021 OF DISTRICT COURT & SESSIONS COURT,THRISSUR IN OS NO.62 OF
   2016 OF ASSISTANT SESSIONS COURT/SUB COURT/COMMERCIAL COURT,
                             CHAVAKKAD

PETITIONER/PETITIONER/APPELLANT/JUDGMENT DEBTOR NO.1/DEFENDENT
NO.1:

           SHEMEER
           AGED 44 YEARS, S/O MUHAMMADUNNI, MALIYEKKAL HOUSE
           VADUTHALA DESOM, ANJOOR .P.O THALAPPILLY TALUK.
           THRISSUR DISTRICT-, PIN - 680523
           BY ADV K.M.MUHAMMED HUSSAIN

RESPONDENTS/RESPONDENTS/RESPONDENTS/DECREE HOLDER AND JUDGMENT
DEBTOR NO.2/PLAINTIFF AND DEFENDANT NO.2:

     1     ALI,
           AGED 56 YEARS, S/O KUNJUMON PANIKKAVEETIL HOUSE,
           THIRUVATHRA P.O ,MANATHALA, CHAVAKKAD TALUK THRISSUR
           DISTRICT-, PIN - 680506
     2     BUSHAINA,
           AGED 41 YEARS, W/O MALIYEKKAL SHAMEER MALIYEKKAL
           HOUSE,VADUTHALA DESOM, ANJUR VILLAGE, THALAPPILLY
           TALUK THRISSUR DISTRICT
           NOW RESIDING AT C/O VIJAYALAKSMI ,MANGALATH HOUSE
           LABAKADVU P.O, NIRMALA COLLEGE JUNCTION, MUVATTUPUZHA
           ERNAKULAM DISTRICT, PIN - 686661
           BY ADV RAJIT

     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21.05.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C) 703/2024
                               -2-


                           JUDGMENT

(Dated this the 21st day of May 2024) Ext.P11 order dismissing the application to condone the delay in preferring the appeal against the decree and judgment in the suit is under challenge in this Original Petition.

2. The petitioner is the 1st defendant, and respondents are the plaintiff and 2nd defendant in O.S. No.62/2016 on file of the Sub Court, Chavakkad (for short, 'the Trial Court'). The suit was one for money. An ex-parte decree was passed against the defendants as early as in 2016. The petitioner, who is the 1st defendant, preferred an indigent appeal which is pending before the District Court, Thrissur (for short, the Appellate Court'). Along with the appeal, I.A No.2/2021 has been filed to condone the delay OP(C) 703/2024 -3- of 1588 days in preferring the appeal. The Appellate Court, after hearing both sides, dismissed the delay condonation application as per Ext.P11 order. Consequently, indigent petition was also dismissed as per Ext.P12 order. They are under challenge in this Original Petition.

3. I have heard Sri. Muhammed Hussain K.M, the learned counsel for the petitioner, and Sri.Rajit, the learned counsel for respondents.

4. The Appellate Court dismissed the delay condonation application on the ground that each and every day's delay has not been properly explained. However, the fact remains that the petitioner is a cancer patient and he is suffering from the said disease since 2015. Hence, I am of the view that a lenient view ought to have been taken by the Appellate Court.

OP(C) 703/2024 -4-

5. Having heard both sides, Exts.P11 and P12 are set aside. Ext.P5 application is allowed, on condition that the petitioner shall pay a sum of Rs.15,000/- (Rupees Fifteen thousand only) towards cost to the respondents within one week from today. Further proceedings in the Execution Petition shall stand deferred. The parties shall appear before the Appellate Court on 31.05.2024.

Original Petition is disposed of accordingly.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE JS OP(C) 703/2024 -5- APPENDIX OF OP(C) 703/2024 PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE CHEQUE DATED 19-07-2016 Exhibit P2 TRUE COPY OF THE JUDGEMENT DATED 25-07-2017 IN O.S NO.62/2016 BEFORE THE SUB COURT CHAVAKKAD Exhibit P3 THE TRUE COPY OF UN NUMBERED A.S.NO. OF 2021 BEFORE THE COURT OF PRINCIPAL DISTRICT JUDGE- THRISSUR FILED BY THE PETITIONER DATED 22-11-2021 Exhibit P4 THE TRUE COPY OF THE P.O.P.NO.256 OF 2021 IN A.S.NO. OF 2021 COURT OF PRINCIPAL DISTRICT JUDGE- THRISSUR FILED BY THE PETITIONERS DATED 22-11-2021 Exhibit P5 TRUE COPY OF THE I.A.NO 2 OF 2021 IN POP.NO.256 OF 2021 IN UNNUMBERED A.S.NO. OF 2021 COURT OF PRINCIPAL DISTRICT JUDGE- THRISSUR FILED BY THE PETITIONERS DATED 22-11-2021 TO CONDONE THE DELAY FOR FILING APPEAL Exhibit P6 THE TRUE COPY OF E.P.NO.29 OF 2021 IN O.S.NO.62 /2016 ON THE FILES OF THE SUB COURT- CHAVAKKAD DATED 30-06- 2021 Exhibit P7 THE TRUE COPY OF OBJECTION FILED BY THE PETITIONER IN E.P.NO.29 OF 2021 IN O.S.NO.62 /2016 DATED 22- 11-2021 Exhibit P8 THE TRUE COPY OF THE PROCEEDINGS DATED 05-08-2023 IN E.P.NO.29 OF 2021 IN O.S.NO.62 /2016 ON THE FILES OF THE SUB COURT-CHAVAKKAD OBTAINED FROM THE WEBSITE OF E-COURT SERVICE Exhibit P9 THE TRUE COPY OF THE JUDGMENT IN O.P.(C)1824/2023 DATED 19-10-2023 Exhibit P10 THE TRUE COPY OF THE OBJECTION FILED BY THE 1 ST RESPONDENT IN I.A.NO 2 OF 2021 IN POP.NO.256 OF 2021 COURT OF PRINCIPAL DISTRICT JUDGE, THRISSUR DATED 07-11- 2023 Exhibit P11 THE TRUE COPY OF THE ORDER IN I.A.NO 2 OF 2021 ON THE FILE OF COURT OF PRINCIPAL DISTRICT JUDGE, THRISSUR DATED 12-12-2023 Exhibit P12 THE TRUE COPY OF THE P.O.P.NO.256 OF 2021 IN A.S.NO. OF 2021 ON THE FILE OF COURT OF PRINCIPAL DISTRICT JUDGE, THRISSUR DATED 12-12-2023