IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 7TH MARCH 2008 / 17TH PHALGUNA 1929 RSA.No. 998 of 2007(B) ---------------------- AGAINST THE ORDER DATED 11 /2 /2004 IN OS.191/1999 of MUNSIFF COURT,ATTINGAL AND THE JUDGMENT IN UNNUMBERED APPEAL of 2005 (C.F.4626) IN IA.614/2005 of SUB COURT,ATTINGAL .................... : APPELLANT/APPELLANT (PETITIONER) IST DEFENDANT --------------------------------------------------- MALA NARAYANI ,D/O. MALA, AGED 66 YEARS, MANAKKATTU VEEDU, HOUSE NO. 287, WARD NO.1, VEILOOR VILLAGE MUNDAKKAL MURI, MANGALAPURAM PANCHAYAT. BY ADV. SRI.S.D.ASOKAN RESPONDENTS: RESPONDENTS (COUNTER PETITIONERS)PLAINTIFF AND DEFENDANTS 2 AND 3 ------------------------------------------------------------- 1. MUHAMMED MUSTAFFA,S/O. ALIYARKUNJU AGED 50 YEARS, MYLUMMOODU BUNGALOW, MURUKKUMPUZHA, MUNDAKKAL, VEILOOR VILLAGE. 2. KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY, K.S.E.B VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 3. ASSISTANT EXECUTIVE ENGINEER ELECTRICAL MAJOR SECTION, MANGALAPURAM, THONNAKKAL. BY ADV. SRI. ASOK M.CHERIYAN, SC, KSEB SRI.J.JAYAKUMAR FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.2124/2007 IN R.S.A.NO.998/2007 7.3.2008 DISMISSED Sd/- M.Sasidharan Nambiar Judge /true copy/ P.S. To Judge M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO. 998 OF 2007 =========================== Dated this the 7th day of March, 2008 JUDGMENT First defendant in O.S.191/1999 on the file of Munsiff Court, Attingal is the appellant. First respondent is the plaintiff and respondents 2 and 3 are defendants 2 and 3, the Kerala State Electricity Board and its Assistant Executive Engineer. First respondent instituted the suit for mandatory injunction. Though appellant filed a written statement, when the suit was taken for evidence she did not contest the suit. A Decree for mandatory injunction was granted directing respondents 2 and 3 to disconnect the electric supply to the plaint schedule building. Appellant did not file an appeal in time. An appeal was filed along with I.A.614/2005, an application under section 5 of the Limitation Act to condone the delay of 320 days in filing the appeal. Case of the appellant in her affidavit in support of that R.S.A.998/2007 2 application was that she was laid up from 4.2.2004 to 9.3.2005 and there was death of one of her sons by which she could not approach her lawyer to take steps and therefore the delay was caused and the delay was neither intentional nor wilful and is to be condoned. First respondent contested the application contending that there is no sufficient cause to condone the delay and without proper explanation delay cannot be condoned. Learned Sub Judge on appreciation of the case found that delay was not properly explained and therefore it cannot be condoned. The petition was dismissed. Consequently the appeal was dismissed as barred by time. Second appeal was filed challenging the dismissal of the first appeal on the ground of delay. 2.Learned counsel appearing for appellant was heard. 3. The argument of the learned counsel is that though appellant did not explain each day's delay in the interest of substantial justice first R.S.A.998/2007 3 appellate court should have condoned the delay. It was also argued that the delay was not wilful or intentional and in such circumstance an opportunity should have been granted. 4. On hearing the learned counsel, I do not find that any substantial question of law is involved in the appeal. 5. The first appeal was filed after a delay of 320 days. The suit was decreed on 11.2.2004. The copy application for the judgment was filed only on 20.10.2004. The judgment of the trial court shows that eventhough appellant filed a written statement, she did not contest the suit. In fact O.S.207/1993 was filed by first respondent for eviction of the appellant and that suit was decreed and execution proceedings was pending when the appeal was filed. Learned counsel submitted that though an appeal was filed challenging the decree for eviction it was dismissed the appellant is taking steps to challenge the judgment. Whatever it be, the facts disclosed from the R.S.A.998/2007 4 judgment of the courts below establish that appellant did not contest the suit and did not file the appeal in time. The delay of 320 days was sought to be explained by saying that she was laid up. The details of the illness was not disclosed and no medical certificate was also produced. First appellate court, in the circumstance of the case, was fully justified in dismissing the application. Appeal is dismissed in limine. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006