Aravind vs Jiju J. Nair
2024 Latest Caselaw 14071 Ker

Citation : 2024 Latest Caselaw 14071 Ker
Judgement Date : 28 May, 2024

Kerala High Court

Aravind vs Jiju J. Nair on 28 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 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946


                   OP(C) NO. 2146 OF 2023
AGAINST THE ORDER/JUDGMENT IN AS NO.27 OF 2021 OF DISTRICT
  COURT& SESSIONS COURT,PATHANAMTHITTA ARISING OUT OF THE
 JUDGMENT DATED 31.03.2021 IN OS NO.308 OF 2014 OF MUSNIFF
                        COURT,ADOOR


PETITIONER/PETITIONER/RESPONDENT:

         ARAVIND
         AGED 38 YEARS
         S/O RAMACHANDRAN NAIR, VATTAPARAMBIL
         VEEDU,THONNALLOOR MURI PANDALAM VILLAGE,
         PATHANAMTHITTA DISTRICT, PIN 689 501,
         PIN - 689501
         BY ADVS.
         JACOB P.ALEX
         JOSEPH P.ALEX
         MANU SANKAR P.
         AMAL AMIR ALI


RESPONDENTS/RESPONDENTS/APPELLANTS:

    1    JIJU J. NAIR
         AGED 39 YEARS
         S/O.JANARDHANAN NAIR,GEETHANJALI HOUSE,
         THUMPAMONTAZHAMMURI,MEZHUVELI VILLAGE,
         KOZHENCHERRY TALUK,PATHANAMTHITTA DISTRICT, PIN-
         689514, PIN - 689514
    2    JINU J. NAIR
         AGED 35 YEARS
         S/O.JANARDHANAN NAIR,GEETHANJALI HOUSE,
         THONNALLURMURI, PANDALAM VILLAGE, ADOOR
         TALUK,PATHANAMTHITTA DISTRICT, PIN- 689501, PIN -
         689501
                                     2
OP(C) No. 2146 of 2023


            BY ADVS.
            HARIDAS P
            BIJU HARIHARAN(K/1767/1995)
            SHIJIMOL M.MATHEW(K/907/2005)
            P.C.SHIJIN(K/397/2012)
            ROSHIN MARIAM JACOB(K/1017/2011)


     THIS     OP   (CIVIL)    HAVING    COME   UP    FOR    ADMISSION   ON
28.05.2024,    THE    COURT    ON   THE   SAME      DAY    DELIVERED    THE
FOLLOWING:
                                   3
OP(C) No. 2146 of 2023




           Dated this the 28th day of May, 2024

                          JUDGMENT

Ext.P6 order passed by the District Court,

Pathanamthitta is under challenge in this Original Petition.

2. The petitioner is the defendant and the respondents

are the plaintiffs in O.S. No.308/2014 on the files of the

Munsiff Court, Adoor (for short 'the trial court'). The suit was

dismissed by the trial court. Challenging the dismissal of the

suit, the plaintiffs preferred A.S. No.27/2021 before the

District Court, Pathanamthitta (for short 'the appellate

court'). The defendant/petitioner herein entered appearance

in the appeal and filed a cross objection, but out of time.

Hence, Ext.P5 application was filed to receive the cross

objection on file by enlarging the time for preferring Ext.P4

cross objection. The appellate court as per Ext.P6 order

dismissed Ext.P5 application. It is challenging Ext.P6 order,

the petitioner has approached this Court.

3. I have heard Sri. Jacob P. Alex, the learned counsel

appearing for the petitioner and Sri. P. Haridas, the learned

counsel appearing for the respondents.

4. The petitioner herein preferred Ext.P4 cross objection

with delay of 673 days. As per Order 41 Rule 22 of the Civil

Procedure Code, the cross objection is to be filed within a

period of one month from the date of service of notice in the

appeal or within such further time as the appellate court

may see fit to allow, depending upon the facts and

circumstances of the given case. The trial court dismissed

the application on the ground that no sufficient reason has

been given by the petitioner for enlargement of time. It is

true that in the affidavit filed in support of Ext.P5

application, the reason has not been clearly mentioned. The

Supreme Court in Mahadev Govind Gharge and Others

v. Special Land Acquisition Officer, Upper Krishna

Project [AIR 2011 SC 2439] has held that the courts would

normally be inclined to condone the delay in filing the cross

objection, in the interest of justice, unless and until the cross

objector is unable to furnish a reasonable or sufficient cause

for seeking the leave of the court to file cross objections

beyond the statutory period of one month. Now after the

passing of Ext.P6 order, the petitioner has filed an additional

affidavit as Ext.P7 before the appellate court. In paragraph 5

of the affidavit filed in support of the said application, the

petitioner has in detail stated the reason for the delay. In

the circumstances, Ext.P6 order is set aside. The appellate

court is directed to reconsider Ext.P5 application, in the light

of Ext.P7 affidavit and also in the light of the dictum laid

down by the Supreme Court in Mahadev Govind Gharge

(supra).

The Original Petition is disposed of as above.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE BR

APPENDIX OF OP(C) 2146/2023

PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE JUDGMENT DATED 31.03.2021 IN O.S. NO. 308 OF 2014 ON THE FILES OF MUNSIFFS COURT, ADOOR Exhibit P2 .TRUE COPY OF THE APPEAL MEMORANDUM IN A.S.NO. 27 OF 2021 ON THE FILES OF DISTRICT COURT, PATHANAMTHITTA Exhibit P3 TRUE COPY OF THE JUDGMENT DATED 13.06.2023 IN OP NO. 1199 OF 2023 BEFORE THIS HON'BLE COURT Exhibit P4 TRUE COPY OF THE MEMORANDUM OF CROSS OBJECTION DATED 07.09.2023 IN A.S. NO. 27 OF 2021 ON THE FILES OF DISTRICT COURT, PATHANAMTHITTA Exhibit P5 TRUE COPY OF I.A. NO. 1 OF 2023 IN A.S. NO. 27 OF 2021 ON THE FILES OF DISTRICT COURT, PATHANAMTHITTA Exhibit P5(a) TRUE COPY OF THE OBJECTION DATED 15.09.2023 FILED BY THE RESPONDENTS TO IA NO. 1 OF 2023 Exhibit P6 TRUE COPY OF THE ORDER DATED 04.10.2023 IN IA. NO. 1 OF 2023 IN A.S. NO. 27 OF

Exhibit P7 TRUE COPY OF I.A. NO.4 OF 2023 IN A.S. NO. 27 OF 2021 ON THE FILES OF DISTRICT COURT, PATHANAMTHITTA

RESPONDENT'S EXHIBITS: NIL