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Judgment
A. Badharudeen, J
This regular second appeal has been filed under order XLII Rule 1 read with Section 100 of the Code of Civil Procedure (“CPC” hereinafter) challenging the decree and judgment in A.S. No.39 of 2022 dated 26.06.2023 on the files of the Court of Subordinate Judge, Koyilandy arose from decree and judgment in O.S. No.9 of 2011 dated 30.03.2019 on the files of the Munsiff Court, Perambra. The appellants herein are the defendants and the respondents are the plaintiffs in O.S. No. 9 of 2011.
Heard the learned counsel for the appellants as well as the learned counsel appearing for the respondents on admission.
The appeal stands admitted on hearing both sides by formulating the following substantial question of law:
i. Whether the First Appellate Court is justified in not condoning the delay of 684 days, where the appellants produced medical records to justify the same?
In this matter, O.S. No.9/2011 filed by the respondents/plaintiffs herein against the appellants/ defendants was decreed directing the defendants “to remove or demolish the way constructed by them (i.e. plaint A-schedule pathway) by trespassing into the plaint B-schedule property.”
Against which A.S. No.39/2022 was filed along with I.A. No.1/2022 with prayer to condone delay of 684 days.
In order to justify the delay, two documents were placed showing illness of the appellants and treatment by Ayurveda physician. As per the documents, the doctors opined that the appellants were under treatment for Osteo Arthritis.
The Appellate Court is of the view that no sufficient reasons stated to condone the delay. Accordingly, the delay petition was dismissed. Consequently, the appeal was also dismissed.
On perusal of the available materials, it could be gathered that the delay is only 684 days, that too in between the period covered by Covid-19 pandemic. Therefore, in the interest of justice, to have a meritorial disposal of the appeal, I am inclined to hold that the Appellate court went wrong in dismissing the delay petition and the appeal.
Accordingly, this regular second appeal stands allowed. The delay petition, I.A. No.1/2022 in A.S. No.39/2022 stands allowed, on payment of cost of Rs.3,000/- (Rupees Three Thousand Only) by the appellants to the counsel appearing for the respondents before the Appellate Court, within a period of ten days from today. On payment of cost within time, the delay in filing the appeal stands condoned, thereby the Appellate decree and judgment stands set aside.
If the cost is not paid, as directed, within time, the delay petition will stand dismissed. Consequently, the first appeal also will stand dismissed.
Subject to payment of cost, there shall be a direction to the First Appellate Court to hear and dispose of the A.S. No.39/2022 within a period of four weeks from date of payment of cost, without further delay. Execution of the decree shall stand deferred for a period of four weeks from today or till the date of disposal of A.S. No.39/2022, whichever occurs first.
Accordingly, this regular second appeal stands allowed as indicated above.