Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI FRIDAY, THE 1ST DAY OF FEBRUARY 2013 12TH MAGHA 193 OP(C).No. 3767 of 2011 (O) -------------------------- I.A.859/2010 IN AS.28/2007 OF ADDL. DISTRICT COURT-I, MAVELIKKARA. ............... PETITIONER: -------------------- SUBHASH, AGED 4 YEARS, S/O.MADHAVAN, PANACKALETHU VADAKKATHIL, MAHADEVIKADU MURI, KARTHIKAPPALLY VILLAGE, ALAPPUZHA DISTRICT. BY ADVS. SRI.B.RENJITHKUMAR, SRI.M.S.RAKESH SHARMA, SMT.AJITHA KUMARI L. RESPONDENT(S): ------------------------- 1. RANI, AGED 3 YEARS, W/O. AJITH KUMAR, VAZHOORUETHU VEETTIL, MAHADEVIKADU MURI, KARTHIKAPPALLY VILLAGE, ALAPPUZHA DISTRICT -688 034.
2. AJITH KUMAR, AGED 4 YEARS, S/O.SUKUMARAN, VASHURETHU VEEDU, MAHADEVIKADU MURI, KARTHIKAPPALLY VILLAGE, ALAPPUZHA DISTRICT”
034. BY ADVS. SRI.R.SUNIL KUMAR, SMT.A.SALINI LAL. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 01-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. OP(C).No. 3767 of 2011 (O) APPENDIX PETITIONER'S EXHIBITS:- EXT.P1 COPY OF THE JUDGMENT DATED 29 09/2006 IN O.S.31/2000. EXT.P2 COPY OF THE APPEAL SUIT NO.28/2007 DATED 31 01/2007. EXT.P3 COPY OF THE I.A. NO.524/2010 DATED 07 08/2010 AMENDMENT APPLICATION. EXT.P4 COPY OF THE DELAY CONDONATION PETITION DATED 18 11/2010. EXT.P5 COPY OF THE ORDER DATED 05 11/2011 FROM ADDITIONAL DISTRICT COURT, MAVELIKKARA IN I.A.859/2010 IN AS.28/2007. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE rs. A.V.RAMAKRISHNA PILLAI, J.
------------------------------------------------------ O.P(C) No.3767 of 2011 ----------------------------------------------------- Dated this the 1st day of February, 2013 JUDGMENT The petitioner is the second defendant in O.S.No.31 of 2007 on the file of the Munsiff's Court, Haripad. The suit was filed by the respondents for permanent prohibitory and mandatory injunctions. The petitioner filed written statement along with counter claim. The suit as well as the counter claim were considered by the trial court. The suit was decreed and the counter claim was dismissed.
2. The petitioner carried the matter in appeal to the Additional District Court, Mavelikkara. However, in the memorandum of appeal, only the decree in the suit was put to challenge. Subsequently, the petitioner filed an application (I.A.No.524/2010) for amending the appeal memorandum to incorporate the prayer challenging the decree dismissing the counter claim. As the same was not filed in time, the petitioner filed another application (Ext.P4) for condoning the delay in filing the amendment application. The Additional District Judge, who heard the Ext.P4 application, dismissed the same by the impugned order. OP(C)3767/11 -:2:- 3. Arguments have been heard and the impugned order was perused.
4. Ext.P4 is the application submitted by the petitioner before the Additional District Court for condoning the delay of 1255 days in filing the amendment application. Genuine reasons are stated in the affidavit accompanying the application, for not filing the amendment application in time. It was stated in the affidavit that the delay had occurred on account of the shifting of practice of the advocate, with whom the petitioner has entrusted the case file.
5. It is true that there was long delay in filing the application for amendment of the appeal. This Court is of the view that the court below could have condoned the delay, as convincing reasons are stated by the petitioner. On a consideration of the entire facts and circumstances, I am intended to allow this petition In the result, the petition is allowed. The impugned order is set aside. I.A.No.859 of 2010 in A.S.No.28/2007 on the file of the Additional District Court-I, Mavelikkara, shall stand allowed on condition that the petitioner pays to the respondents, a sum of `2,000/- as OP(C)3767/11 -:3:- costs, within one month from today through their counsel appearing before the court below and produces receipt before the lower court. The Additional District Judge shall consider I.A.No.524 of 2010 after affording both sides an opportunity of hearing and shall dispose of the same in accordance with law, at the earliest. Parties shall mark appearance before the court below on the next posting date. sd/- A.V.RAMAKRISHNA PILLAI JUDGE krj