IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 8TH JULY 2008 / 17TH ASHADHA 1930 RSA.No. 577 of 2008 --------------------------------- AS.1/2006 of DISTRICT COURT, KOTTAYAM OS.95/2003 of MUNSIFF COURT, CHANGANACHERRY .................... APPELLANTS/APPELLANTS/DEFENDANTS: 1. INDIRA DEVI, W/O.KRISHNAN POTTI, MECHERY ILLOM, THRIKODITHANAM KARA, THRIKODITHANAM VILLAGE, CHANGANACHERRY TALUK. 2. KRISHNAN POTTI, S/O.SAMBU SHARMA, DO. DO. 3. NAVANEETH KRISHNAN, S/O.KRISHNAN POTTI, DO. DO. 4. NEELAKANDAN, S/O.NEELAKANDAN, DO.DO. BY ADV. SRI.PHILIP T.VARGHESE SMT.A.SREEKALA RESPONDENTS/RESPONDENTS/PLAINTIFFS: 1. P.A.LEELA, W/O.LATE N.PADMANABHAN POTTI, MECHERIL HOUSE, PUTTADY KARA, ANAKKARA VILLAGE. 2. SETHUNATH, S/O.LATE N.PADMANABHAN POTTI, DO. DO. 3. P.YAMUNA DEVEI, D/O.N.PADMANABHAN POTTI, DO. DO. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- C.M.Appl.No.480 of 2008 & R.S.A.No.577 of 2008 --------------------------- JUDGMENT This is an application seeking for condonation of delay of 241 days in filing the Regular Second Appeal. The judgment under appeal was pronounced on 15.6.2007. Copy thereof was applied for on 16.6.2007. Stamp papers called for on 6.7.2007 were produced on 7.7.2007. Copy was taken delivery of on 3.8.2007,but the appeal is filed only on 30.6.2008. 2. In the affidavit filed by the first appellant in support of the application for delay condonation, it is averred that the appeal ought to have been filed on or before 1.11.2007; that the appellants were prepared to go for an appeal and contact the Lawyer at Ernakulam for the purpose, but, suddenly, she became sick on account of spondylosis from 8.8.2007 and was not in a position to do her day-to-day affairs; that the second defendant, who is her husband, was attending her RSA 577/08 2 throughout her sickness; that the third defendant, who is her son, was away from home in connection with his job during that time and the fourth defendant, who is her brother, is disabled from his childhood and therefore, the appellants failed to contact their counsel at Ernakulam to prefer an appeal; that she recovered from her illness only on 28.6.2008, after a prolonged treatment and that thereafter she contacted her Lawyer at Ernakulam on 27.7.2007 (the year must be a mistake and must be 2008), who has now prepared and filed the appeal and that has caused a delay of 241 days in filing the appeal. 3. This appeal is seen to have been filed on 30.6.2008. Therefore, the averment that the first appellant contacted her Lawyer on 27.7.2007 could not be either 27.7.2007 or 27.7.2008. There is absolutely no evidence on record to show that the appellant was sick and was not in a position to attend to her day-to-day affairs from 8.8.2007 to RSA 577/08 3 28.6.2008 for reason of spondylosis. Despite her averment that she had to undergo prolonged treatment, whether she was under treatment of any Doctor or any Ayurvedic Physician and as to who was the Doctor or the Physician is not disclosed. Further, her husband is the second defendant and it is too much to believe that he was attending throughout from 8.8.2007 to 28.6.2008 on his wife/ the first appellant so as to disable him to make arrangements to file appeal. Though the third defendant son is stated to be away from home in connection with his job, it is not disclosed as to what is his employment and where he is employed. The reasons stated as aforesaid only show that the appellants were taking their own sweet time to file appeal and not that they were prevented by sufficient cause from filing the appeal within time. There is absolutely no just and sufficient cause to condone the delay of as much as 241 days on the averments made as above in the affidavit of RSA 577/08 4 the first appellant. Further, it has to be borne in mind that the rights that have accrued to the successful party cannot be disturbed or interfered with on such bald averments and there should be an end to litigation and that litigation cannot be prolonged in such a manner, filing appeal at any time as the party desires. In the result, refusing to condone the delay of as much as 241 days in filing the Appeal, I dismiss this C.M. Application. Consequently, the Regular Second appeal also stands dismissed. 8th July, 2008 (K.P.Balachandran, Judge) tkv