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
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
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
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
