Kumaran vs The Natasha Construction Private ...
2022 Latest Caselaw 7267 Ker

               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,

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

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.