IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 14TH JANUARY 2008 / 24TH POUSHA 1929 RSA.No. 13 of 2008() -------------------- AGAINST THE ORDER DATED 30/01/2007 IN IA. 1444 /2006 IN AS.286/2006 of D.C. & SESSIONS COURT,KOLLAM OS.510/1998 of ADDL.MUNSIFF COURT, KOLLAM .................... APPELLANT/APPELLANT/PETITIONER/PLAINTIFF -------------- SREEDEVI, D/O. HARIDASAN, HARIS BHAVAN, THAZHUTHALA, ADICHANALLOOR VILLAGE, KOTTIYAM, KOLLAM. BY ADV. SRI.C.RAJENDRAN RESPONDENTS: RESPONDENTS/RESPONDENTS/DEFENDANTS ------------------ 1. CHINNAMMA, W/O. VASUDEVAN, GEETHALAYAM, THAZHUTHALA, ADICHANALLOOR VILLAGE, KOTTIYAM, KOLLAM. 2. VASUDEVAN, GEETHALAYAM, THAZHUTHALA, ADICHANALLOOR VILLAGE, KOTTIYAM, KOLLAM. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... R.S.A.No. 13 OF 2008 ............................................ DATED THIS THE 14th DAY OF JANUARY, 2008 JUDGMENT Plaintiff in O.S.510 of 1998 on the file of Munsiff Court, Kollam is the appellant. Defendants are respondents. Appellant instituted the suit seeking a decree for declaration and injunction. 2. Learned Munsiff, on the evidence, dismissed the suit on 30.6.2003. A.S.286 of 2006 was filed after a delay of 1147 days along with I.A.1444 of 2006 filed under Section 5 of Limitation Act to condone the delay in filing the appeal. Petition was seriously resisted by respondents, defendants. Learned District Judge, on reappreciation of evidence of appellant as PW1 and second respondent as RW1 and after marking Ext.A1, treatment certificate obtained by appellant and Exts.B1 and B2, dismissed the application and consequently dismissed the appeal. It is challenged in the second appeal contending that first appellate court should have condoned the delay and should have granted an opportunity to have a decision on merit in the first appeal. What was contended by appellant before first appellate court was that she was undergoing treatment at Medical College RSA 13/2008 2 Hospital, Thiruvananthapuram and thereafter she was on bed- rest on the advice of Doctor for about three years and though she had sent her husband to the office of the counsel to enquire about the fate of the suit, the clerk of the counsel did not disclose the fact that suit stood dismissed and consequently she could not file an appeal and in June 2006, respondents attempted to close the pathway which was claimed by appelland and then on enquiry it was found out that suit was dismissed long back and immediately appellant took steps to get the certified copy of the judgment and filed an appeal and the delay was not wilful and in the interest of justice the delay is to be condoned. Respondents resisted the application contending that the reason shown for the delay is not correct and there is no bonafides in the cause shown. It was also contended that appellant was an employee of the cashew factory and the said factory was governed under Employees State Insurance Act and there is nothing before the E.S.I Hospital indicating that she was suffering from any illness or that she was under the treatment and the ground shown for condoning the delay is not justifiable and the petition is to be dismissed. Learned District Judge on the evidence found that though suit was dismissed as early as on 30.6.2003, copy application for the certified copy of the judgment was filed only on 22.6.2006 and though certified copy RSA 13/2008 3 was received from court on 29.7.2006, appeal was filed subsequently only on 17.10.2006. Learned District Judge found that though Ext.A1 certificate issued by Doctor Mohandas was produced and her claim was that prior to 10.10.2006, she was being treated, earlier there is no evidence to support the same and Ext.A1 only shows that appellant was advised to take bed- rest for three months till 10.10.2006 and there is no evidence to prove that she was laid up for three years as claimed by appellant. Relying on the evidence of DW1, learned District Judge found that appellant was regularly attending to the work and was receiving the salary and other benefits from the cashew factory and in such circumstances, case of appellant that she was laid up and therefore she could not file the appeal cannot be correct. It was also found that even though certified copy of judgment was received by appellant belatedly on 29.7.2006, appeal was filed only on 17.10.2006 and even that delay was not sufficiently explained. In such circumstances, learned District Judge dismissed the application. On the facts and evidence, I do not find any substantial question of law is involved in the appeal. Appeal is dismissed in limine. M.SASIDHARAN NAMBIAR, JUDGE lgk/-