Kerala High Court
Kuniyil Moidu,(Died) Lhs Impleaded vs Keerangott Cheriya Ammed on 6 March, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
THURSDAY, THE 6TH DAY OF MARCH 2025/15TH PHALGUNA, 1946
RSA NO.1012 OF 2016
AGAINST THE ORDER/JUDGMENT DATED 03.01.2013 IN AS
NO.36 OF 2007 OF ASSISTANT SESSIONS COURT/SUB
COURT/COMMERCIAL COURT, VADAKARA ARISING OUT OF THE
ORDER/JUDGMENT DATED 15.03.2007 IN OS NO.130 OF 1997 OF
MUNSIFF COURT, VADAKARA
APPELLANTS
1 KUNIYIL MOIDU,(KUZICHALIL)(DIED) LHS IMPLEADED
AGED 76 YEARS,
S/O.AMMED, PRESENTLY RESIDING AT TATTANKANDIL
HOUSE, POST-THIRUVALLOOR, (VIA)VADAKARA,
KOZHIKODE DISTRICT-673 541.
2 ALEEMA,
W/O.KUNIYIL MODU (KUZHICHALIL),AGED 62 YEARS,
PRESENTLY RESIDING AT TATTANKANDIL HOUSE,
POST-THIRUVALLOOR, (VIA) VADAKARA,
KOZHIKODE DISTRICT,
PIN-673 541.
3 RAIHANATH,
D/O.KUNIYIL MODU (KUZHICHALIL),AGED 48 YEARS,
PRESENTLY RESIDING AT TATTANKANDIL HOUSE,
POST-THIRUVALLOOR, (VIA) VADAKARA, KOZHIKODE
DISTRICT,
PIN-673 541.
4 MUHAMMED RAFI,
S/O.KUNIYIL MODU (KUZHICHALIL),AGED 41 YEARS,
PRESENTLY RESIDING AT TATTANKANDIL HOUSE,
POST-THIRUVALLOOR, (VIA) VADAKARA,
KOZHIKODE DISTRICT,
PIN-673 541.
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5 SHAHARBAN,
D/O.KUNIYIL MODU (KUZHICHALIL),AGED 38 YEARS,
PRESENTLY RESIDING AT TATTANKANDIL HOUSE,
POST-THIRUVALLOOR, (VIA) VADAKARA, KOZHIKODE
DISTRICT,
PIN-673 541.
6 MISIRIYA,
D/O.KUNIYIL MODU (KUZHICHALIL),AGED 34 YEARS,
PRESENTLY RESIDING AT TATTANKANDIL HOUSE,
POST-THIRUVALLOOR, (VIA) VADAKARA, KOZHIKODE
DISTRICT,PIN-673 541.
7 AARIF,
S/O.KUNIYIL MODU (KUZHICHALIL),AGED 32 YEARS,
PRESENTLY RESIDING AT TATTANKANDIL HOUSE,
POST-THIRUVALLOOR, (VIA) VADAKARA, KOZHIKODE
DISTRICT,PIN-673 541. (THE LEGAL REPRESENTATIVES
OF DECEASED SOLE APPELLANT ARE IMPLEADED AS
ADDL.A2 TO A7 AS PER ORDER DATED 28.07.2017 IN
IA.NO.1853/2017)
BY ADVS.
C.VATHSALAN
GHOSH YOHANNAN
K.RAKESH ROSHAN
RESPONDENTS
1 KEERANGOTT CHERIYA AMMED,
AGED 54 YEARS, S/O. SOOPY, BUSINESS CHEMMARATHUR
AMSOM,THODANNUR DESOM, P.O.THODANNUR, VATAKARA
TALUK, KOZHIKODE DISTRICT-673 104.
2 Ist DEFENDANT'S POWER OF ATTORNEY HOLDER,
MACHAPPALLY MEETHAL AMINA
AGED 48 YEARS, W/O. CHERIYA AMMED, SWASTHGAM,
CHEMMARATHUR AMSOM, THODANNUR DESOM,
P.O.THODANNUR, VATAKARA TALUK,
KOZHIKODE DISTRICT-673 104.
3 KADEESA,
AGED 78 YEARS, W/O. KUTTIYIL KUNHAMMAD HAJI,
RESIDING AT 'OTTAPILAKKOOL', CHEMMARATHOOR
AMSOM, DESOM, P.O.CHEMMARATHOOR, VATAKARA TALUK,
KOZHIKODE DISTRICT, KERALA STATE-673 104.
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4 SULAIMAN HAJI,
AGED 57 YEARS, S/O.KUNHAMMAD HAJI, RESIDING AT
'OTTAPILAKKOOL', CHEMMARATHOOR AMSOM, DESOM,
P.O.CHEMMARATHUR, VATAKARA TALUK, KOZHIKODE
DISTRICT, KERALA STATE-673 104.
5 BIYATHU,
AGED 57 YEARS, KUTTIYIL KUNHAMMAD HAJI, RESIDING
AT 'OTTAPILAKKOOL', CHEMMARATHOOR AMSOM,
DESOM,P.O.CHEMMARATHUR, VATAKARA TALUK,KOZHIKODE
DISTRICT, KERALA STATE-673 104.
6 MOOSA HAJI,
AGED 52 YEARS, S/O. KUTTIYIL KUNHAMMAD HAJI,
RESIDING AT 'OTTAPILAKKOOL', CHEMMARATHOOR
AMSOM, DESOM,P.O.CHEMMARATHUR, VATAKARA
TALUK,KOZHIKODE DISTRICT, KERALA STATE-673 104.
7 SUBAIDA
AGED 50 YEARS, D/O. KUTTIYIL KUNHAMMAD HAJI,
RESIDING AT 'OTTAPILAKKOOL', CHEMMARATHOOR
AMSOM, DESOM,P.O.CHEMMARATHUR, VATAKARA
TALUK,KOZHIKODE DISTRICT, KERALA STATE-673 104.
8 KUNHAIYISSA,
AGED 66 YEARS, D/O. KUTTIYIL KUNHAMMAD HAJI,
RESIDING AT 'OTTAPILAKKOOL', CHEMMARATHOOR
AMSOM, DESOM,P.O.CHEMMARATHUR, VATAKARA
TALUK,KOZHIKODE DISTRICT, KERALA STATE-673 104.
9 AMINA,
AGED 61 YEARS, D/O. KUTTIYIL KUNHAMMAD HAJI,
RESIDING AT 'OTTAPILAKKOOL', CHEMMARATHOOR
AMSOM, DESOM,P.O.CHEMMARATHUR, VATAKARA
TALUK,KOZHIKODE DISTRICT, KERALA STATE-673 104.
BY ADVS.
SRI.K.LAKSHMINARAYANAN
SMT.SATHYASHREE PRIYA EASWARAN
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THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 06.03.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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JUDGEMENT
C.M.A No.769 of 2016
1. This is an application to condone delay of 1245 days in filing the Regular Second Appeal.
2. The application is opposed by the respondents 3 to 8 by filing Counter Affidavit.
3. I heard the learned counsel for the appellant, Sri.Rakesh Roshan, and the learned counsel for the respondents 3 to 8, Sri.K.lakshminaryanan.
4. The learned counsel for the appellant submitted that the delay is sufficiently explained in the affidavit as the applicant was a cancer patient undergoing treatment from 2013. Since he was bedridden, he could not contact his counsel. Only when the delivery of the property in execution of the impugned judgment was effected, the wife of 2025:KER:19181 R.S.A No.1012 of 2016 6 the applicant contacted his counsel and obtained the certified copy, and filed the second appeal. The counsel invited my attention to Annexure I Discharge Summary and Annexure I(a) & (b) Scan reports to substantiate the fact that the applicant was suffering from cancer. The learned counsel further submitted that after the filing of the appeal, the applicant died in aggravation of the aforesaid disease on 09.05.2017.
5. On the other hand, the learned counsel for the contesting respondents contended that the delay is not properly explained in the affidavit. It is true that the documents prove that the applicant was suffering from cancer, but that would not in any way incapacitate them from contacting the counsel and taking steps to file an appeal within time. Even as per the affidavit it 2025:KER:19181 R.S.A No.1012 of 2016 7 is stated that his wife contacted the counsel and obtained certified copy and made necessary arrangements to file the second appeal.
6. I have considered the rival contentions.
7. It is seen from the affidavit that the impugned judgment and decree was passed on 03.01.2013, and the application for certified copy was submitted without any delay on 05.01.2013. The counsel for the appellant received the certified copy on 2.02.2013. This appeal is filed on 28.09.2016. The question is whether the applicant has explained the delay from 02.02.2013 to 28.09.2016, excluding the period of limitation. Annexure I Discharge Summary would reveal that he was suffering from cancer and his vocal cord was removed. Annexure I would show that the applicant was admitted in the hospital on 08.12.2011, and 2025:KER:19181 R.S.A No.1012 of 2016 8 he was discharged on 10.12.2011, which is prior to the issuance of the certified copy by the First Appellate Court. Annexure 1(a)and Annexure 1(b) show that as on 10.06.2013 and 06.01.2016, the appellant did not have any physical incapacity on account of his disease. It is true that the appellant died subsequent to the filing of the appeal but that could not be taken as a ground for condoning the delay of 1245 days in filing this appeal. As pointed out by the learned counsel for the respondent, the delivery was effected on 18.06.2016 as per the impugned judgment and decree. This appeal is filed after effecting the delivery of the plaint schedule property in favor of the decree holder. Even in the affidavit it is stated that the necessary arrangement for filing the appeal was done by the wife of the appellant. There was no impediment for 2025:KER:19181 R.S.A No.1012 of 2016 9 the applicant to file the appeal within a reasonable time after receiving the certified copy of the judgment from the First Appellate Court. No sufficient reason is made out for condoning the delay of 1245 days. Accordingly, the CM application is dismissed.
RSA No.1012 of 2016 As a result of the dismissal of C.M Application 769/2016, the Regular Second Appeal is also dismissed.
Sd/-
M.A.ABDUL HAKHIM JUDGE Cak/ra