Kerala High Court
K.P. Muhammed vs S. Bhargavan on 4 September, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.BADHARUDEEN
Monday, the 4th day of September 2023 / 13th Bhadra, 1945
CM.APPL.NO.1/2023 IN RSA NO. 119 OF 2023
OS 215/2015 OF PRINCIPAL MUNSIFF COURT, KOLLAM
AS 3/2018 OF II ADDITIONAL DISTRICT COURT, KOLLAM
PETITIONERS/APPELLANTS:
1. K.P. MUHAMMED,(EXPIRED), S/O.MOOSA, AGED 65 YEARS, PUTHEN BENGLAVU,
ITI JUNCTION, CHANDANATHOPPU, PERINAD VILLAGE, KOTTANKARA GRAMA
PANCHAYATH, KOLLAM DISTRICT PIN - 691014
2. SULEKHA BEEVI, AGED 70 YEARS, W/O. K.P. MUHAMMED (LATE), PUTHEN
BENGLOW, ITI JUNCTION, CHANDANATHOPPU, PERINAD, KOTTANKARA, KOLLAM
DISTRICT PIN - 691014
3. ABDUL NAZAR, AGED 47 YEARS, S/O. K.P. MUHAMMED (LATE), PUTHEN
BENGLOW, ITI JUNCTION, CHANDANATHOPPU, PERINAD, KOTTANKARA, KOLLAM
DISTRICT PIN - 691014
4. SHANAVAS, AGED 45 YEARS, S/O. K.P.MUHAMMED (LATE), PUTHEN BENGLOW,
ITI JUNCTION, CHANDANATHOPPU, PERINAD, KOTTANKARA, KOLLAM DISTRICT
PIN - 691014
5. SHEMIMOL, AGED 43 YEARS, D/O. K.P. MUHAMMED (LATE), PUTHEN BENGLOW,
ITI JUNCTION, CHANDANATHOPPU, PERINAD, KOTTANKARA, KOLLAM DISTRICT
PIN - 691014
RESPONDENT/RESPONDENT:
S. BHARGAVAN, AGED 74 YEARS, S/O. SANKARAN, NOW RESIDING AT
SUNILBHAVAN, CHANDANATHOPPU P.O., PERINAD VILLAGE, HOUSE NO.490,
WARD NO.14, PERINAD GRAMA PANCHAYATH, KOLLAM DISTRICT, PIN - 691014
Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to condone the delay
of 152 days in filing the above Regular Second Appeal, in the interests of
justice.
This Application coming on for orders upon perusing the application
and the affidavit filed in support thereof, and upon hearing the arguments
of SRI.K.RAKESH, Advocate for the petitioners and of M/S.PRAKASH P.GEORGE,
SADER E.REAZ, ABHIJITH M., Advocates for the respondent, the court passed
the following:
A.BADHARUDEEN, J.
------------------------------------
CM Appl. No.1 of 2023
in
RSA No.119 of 2023
------------------------------------
Dated, this the 4th day of September, 2023
ORDER
This is an application filed by the appellants in this matter
to condone delay of 152 days in filing the Regular Second
Appeal.
2. Heard the learned counsel for the appellants as well
as the learned counsel for the respondent.
3. It is pointed out by the learned counsel for the
petitioners/Regular Second Appellants that the second appellant
is an age old lady of 70 years and she conducted the case
before the appellate court and she could not file appeal in time,
because of her age old ailments. Therefore, 152 days of delay in
filing the Regular Second Appeal may be condoned, in the
interest of justice.
4. Whereas condonation of delay of 152 days is
specifically opposed by the respondent and the respondent filed
CM Appl.No.1 of 2023
in RSA No.119 of 2023
counter affidavit mainly contending that, 'the original defendant
was in fact conducting the case right from 2015 and the
additional appellants had no contact or acquaintance with the
lawyer and that the disposal of the case was noticed only at a
belated point of time' are not at all correct and hence denied. It
is submitted that the original appellant, Sri.K.P.Muhammed died
on 30.08.2019 pending the appeals before the IInd Additional
District Court, Kollam. In the appeal filed by the appellant,
Sri.K.P.Muhammed, AS No.1/2018, the additional appellants
herein got impleaded in 2019 itself and they vigilantly prosecuted
the appeal from 2019 to 2022. So also, in the appeal filed by the
respondent, AS No.3/2018, the respondent impleaded the legal
heirs of the deceased K.P.Muhammed in 2019 and from 2019 to
2022, the appellants herein were vigilantly prosecuted the said
appeal. Hence, the averment that 'the additional appellants had
no contact with the lawyer and that disposal of the case was
noticed only at a belated point of time' are not at all correct.
There is atom of truth or bonafides in the said statement. The
CM Appl.No.1 of 2023
in RSA No.119 of 2023
further averment in the same paragraph that 'the original
appellant died due to various geriatric complaints and the
additional appellants had to incur huge expenses for the
treatment of the deceased defendant and therefore, the case
could not be entrusted with a lawyer for filing this appeal on time'
are also not at all correct and hence denied. The appellants had
not produced any documents to substantiate the said
contentions.
5. It is also submitted by the learned counsel for the
respondent that plaint scheduled property purchased by the
respondent was given on license to conduct bunk and the
original licensee Sri.K.P.Muhammed failed to vacate the
premises on termination of license the present suit was filed. It
is also submitted that as per the appellate judgment in AS
No.3/2013, on the files of the IInd Additional District Court, Kollam
prohibitory as well as the mandatory injunction sought for was
granted. When the decree was put in execution, the appellants
herein filed petition under Section 47 of the Civil Procedure
CM Appl.No.1 of 2023
in RSA No.119 of 2023
Code and the same also has been pending. It is also submitted
that the respondent is a senior citizen aged 74 years and the
attempt on the part of the appellants is to deny enjoyment of the
fruits of the decree by the respondent by filing this belated
second appeal.
6. As regards the question of condonation of delay of
152 days, I am inclined to condone the same, in the interest of
justice, in consideration of the reason stated in the affidavit in
support of this petition, on payment of cost of Rs.2,000/-
(Rupees two thousand only) to the counsel appearing for the
respondent within seven days to have disposal of the matter on
merits.
It is specifically made clear that if the cost, as ordered, is
not paid within seven days, the petition stands dismissed.
Post on 12.09.2023 to ascertain payment of cost.
Sd/-
A. BADHARUDEEN,
JUDGE
nkr
04-09-2023 /True Copy/ Assistant Registrar
