Sheeba C vs Manjeri Kallyani Amma
2021 Latest Caselaw 9072 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

            THE HONOURABLE MR. JUSTICE SUNIL THOMAS

   THURSDAY, THE 18TH DAY OF MARCH 2021 / 27TH PHALGUNA, 1942

                   WP(C).No.24333 OF 2020(N)


PETITIONER/S:

            SHEEBA C.
            AGED 36 YEARS
            D/O.BALAKRISHNAN, DIVYA NIVAS, PANAYANCHAL,
            KOLARI AMSOM, PORORA DESOM, P.O.PORORA, PIN-670602.

            BY ADVS.
            SRI.K.V.PAVITHRAN
            SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL

RESPONDENT/S:

      1     MANJERI KALLYANI AMMA
            AGED 69 YEARS
            W/O.KRISHNAN.A(LATE), D/O.LATE RADHAYI AMMA,
            CHALIL HOUSE, KODALIPURAM,
            PATTANNUR P.O., PIN-670695.

      2     STATE OF KERALA,
            REPRESENTED BY HOME SECRETARY, SECRETARIAT,
            THIRUVANANTHAPURAM.

            R1 BY ADV. SRI.ASHWIN SATHYANATH
            R2 SRI. SON (GP)

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
18.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.24333 OF 2020(N)

                                   2




                             JUDGMENT

The petitioner is the respondent in

DCKN/3361/2019-M4 of 2017 filed by the first

respondent herein before the Maintenance Appellate

Tribunal, Thalassery. It is stated that the matter was

settled and Ext.P3 order was passed. Thereafter,

aggrieved by the above settlement, the appeal was

preferred by the first respondent before the Maintenance

Appellate Tribunal (District Collector), Kannur along with

an application to condone the delay of 365 days in

preferring the appeal. The above application seems to

have allowed. Thereafter the appeal was taken on file

and Ext.P9 order was passed by the Maintenance

Appellate Tribunal, which is under challenge in the

present proceedings. Aggrieved by the above, the

petitioner has approached this court.

2. Heard both sides and examined the records. WP(C).No.24333 OF 2020(N)

3. One of the specific contentions set up by the

learned counsel for the petitioner is that, the above

appeal was filed with a considerable delay. The appellate

authority did not give an opportunity to the petitioner

herein, to raise objections regarding the delay

condonation application. The learned counsel for the writ

petitioner referred to Section 16 of the statute which

provides that the authority is entitled to condone the

delay, exceeding more than 60 days, if satisfactory

explanation is offered. According to the learned counsel,

the respondents have a right to notice and to contest the

application for condonation of delay. The records were

called for. Writ petitioner appeared, pursuant to the

notice, and filed objection. It is seen that there is no

specific posting for consideration of the delay

condonation application.

4. Having considered this fact, I feel that the

appellate authority had committed an error in allowing

the delay condonation application without giving an WP(C).No.24333 OF 2020(N)

opportunity to the contesting respondents to be heard,

especially when valuable right of the parties are in

dispute.

5. Having considered the above, I am inclined to

allow the Writ Petition and to set side the impugned

order, Ext.P9. Accordingly, Ext.P9 stands set aside. The

matter is remanded to the appellate authority for a fresh

consideration of the delay condonation application, after

giving a reasonable opportunity to both sides to be

heard. The Appellate Authority shall take up the delay

condonation application and after giving a reasonable

opportunity to both sides of being heard, pass

appropriate orders in accordance with law. Depending on

the outcome of the delay condonation application, the

appeal may be dealt with in accordance with law. If the

delay is condoned, the Appellate Authority shall consider

the appeal untramelled by any of the observations made

by this court in the Writ Petition.

6. Both sides shall appear before the Appellate WP(C).No.24333 OF 2020(N)

Authority on 12.04.2021. It is made clear that if the

appellate authority is not sitting on that day, the

appearance date shall be notified to yet another day, on

which day, the parties shall appear. The appellate

authority shall dispose the delay condonation application

as expeditiously as possible, at any rate, within a period

of 45 days from the above date of appearance of the

parties. Thereafter, if the appeal is considered, it shall be

disposed of within a period of three months from the

date of disposal of the delay condonation application.

Writ Petition is allowed. Return the back filed to the

appellate authority.

Sd/-

SUNIL THOMAS, JUDGE R.AV WP(C).No.24333 OF 2020(N)

APPENDIX

PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE DOCUMENT DHANANISCHAYADHARAM DATED 23.06.2012 IN FAVOUR OF THE PETITIONER.

EXHIBIT P2 TRUE COPY OF THE PETITION IN MCC NO.200/2017 FILED BY THE 1ST RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE ORDER DATED 18.01.2018 PASSED IN MCC 200/2017.

EXHIBIT P4 TRUE COPY OF THE APPLICATION FOR CONDONATION OF THE DELAY DATED 18.03.2019.

EXHIBIT P5 TRUE COPY OF THE APPEAL MEMORANDUM FILED BY THE 1ST RESPONDENT DATED 20.03.2019.

EXHIBIT P6 TRUE COPY OF THE NOTICE DATED 26.06.2019 SERVED ON THE PETITIONER.

EXHIBIT P7 TRUE COPY OF THE COUNTER FILED IN APPLICATION FOR CONDONATION OF DELAY DATED 23.07.2019.

EXHIBIT P8 TRUE COPY OF THE COUNTER FILED IN THE APPEAL BY THE PETITIONER DATED 23.07.2019.

EXHIBIT P9 TRUE COPY OF THE ORDER OF THE APPELLATE TRIBUNAL DATED 23.10.2019.

   RESPONDENT'S/S EXHBITS              NIL