GOPALAKRISHNAN Vs. THILAKA

JUDGEMENT

(1.) This R.S.A. is preferred against the order dated 29.01.2019 in IA No.2797/2016 in AS No.132/2016 of the Additional Sub Court, Irinjalakuda (hereinafter referred to as 'the first appellate court') whereby the first appellate court dismissed the application for condonation of delay. The appellants were the defendants in a suit instituted by the respondent as O.S.No.2135 of 2002 for declaration of an injunction; both prohibitory and mandatory in nature. The appellants filed written statement in the aforesaid suit along with a counter claim for a decree of mandatory injunction against the respondent to remove the obstruction caused by the respondent in the counter claim schedule pathway. The said suit was dismissed by the trial court on 31.7.2009. Thereafter, there was a delay of 2601 days in filing the appeal. It was not approved by the first appellate court and accordingly, the application was dismissed.

(2.) Heard the learned counsel for the appellants Sri.K.Arun Krishnan and the learned counsel for the respondent Sri.Mahesh.V.Menon.

(3.) The second appellant is the wife of the first appellant. O.S.No.2135/2002 was filed by the respondent seeking declaration, mandatory injunction and permanent prohibitory injunction. The trial court dismissed the suit without costs on 31.7.2009. The counter claim of the defendants was also dismissed without costs. Instead of filing an appeal, they filed O.S.No.4009 of 2013 before the Munsiff's Court, Irinjalakuda for identical reliefs. The above suit was dismissed with costs on 30.3.2016. Challenging the judgment and decree of the said case, the appellant preferred an appeal before the first appellate court on 04.08.2016. When PW1 was examined before the first appellate court, he admitted that he had preferred an appeal against the judgment and decree of the subsequent suit and he admitted Ext.B1 appeal memorandum preferred by him. He further admitted that the present first appeal was filed after filing Ext.B1 appeal. The present first appeal along with petition for condonation of delay was filed on 17.10.2016 whereas Ext.B1 appeal was preferred only by the appellants on 4.8.2016.