IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 14TH JULY 2008 / 23RD ASHADHA 1930 RSA.No. 242 of 2006 --------------------------------- AS.279/2002 of DISTRICT COURT, THRISSUR OS.1/1994 of M.C., WADAKKANCHERRY .................... APPELLANTS/APPELLANTS/DEFENDANTS: 1. SUSHEELA, W/O.KULAPARAMBIL BALAKRISHNAN, AGED 39 YEARS, KULAPARAMBIL HOUSE, VARAVOOR P.O., VARAVOOR VILLAGE, THALAPPILLY TALUK, THRISSUR. 2. BALAKRISHNAN, H/O. 1ST APPELLANT SUSHEELA, RESIDING AT VARAVOOR VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT. BY ADV. SRI.P.RADHAKRISHNAN (1) SRI.MADHU RADHAKRISHNAN RESPONDENTS/RESPONDENTS/PLAINTIFFS: 1. SUBRAMANIAN, S/O. NARAYANAN, AGED ABOUT 56 YEARS, ORAVANMARIL HOUSE, VARAVOOR P.O., VARAVOOR VILLAGE, THALAPPILLY TALUK, THRISSUR. 2. KUMARI, W/O. SUBRAMANIAN, AGED ABOUT 46 YEARS, DO. DO. BY ADV. SRI.G.SREEKUMAR (CHELUR) FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- C.M.Appl.No.106 of 2006 & R.S.A.No.242 of 2006 --------------------------- JUDGMENT This is an application seeking for condonation of delay of 474 days in filing the appeal. The judgment impugned is dated 17.6.2004. Copy thereof was applied for on 18.6.2004. Stamp papers called for on 9.7.2004 were produced only on 13.7.2004. Copies of the judgment and decree were taken delivery of only on 4.8.2004, though the date fixed to appear and receive the copy was on 28.7.2004. However, the appeal is filed only on 3.2.2006, after 1½ years of receipt of the copy of judgment. 2. The reasons stated in the affidavit filed by the first appellant to explain the delay are that she wanted to amicably settle the dispute with the respondents and tried to settle the issues with them; that however, despite her efforts, she could not arrive at a settlement and subsequently, when she decided to file an appeal, she realised that RSA 242/06 2 copy of the decree in the appeal was misplaced; that after much effort, the same was recovered and she entrusted the files to her Advocate at Ernakulam, but, however, when the appeal was finally filed, there happened to be a delay of 474 days in filing the appeal and that there is no wilful delay or laches on her part and therefore, the delay has to be condoned. 3. The affidavit does not give the details of the date of the judgment, the date on which copy was applied for, how much delay was there in producing the stamp papers called for, as to whether copy was taken delivery of on the date fixed to appear and receive the copy, etc. Further, her statement that there were settlement talks with the respondents is disputed by the respondents, who have filed counter to the C.M. Application. There is no mention as to what all were the modes of settlement suggested and why no settlement could not be effected and when she became aware that no RSA 242/06 3 settlement is workable and she decided to file an appeal. There is also no averment in the affidavit as to when she realised that copy of the decree was misplaced, when she recovered it and when she entrusted the case file with her Advocate at Ernakulam and how many days prior to the actual filing of the appeal on 3.2.2006. On such vague averments made in the affidavit, the delay of as much as 474 days in filing the appeal cannot be condoned to the detriment of the respondenst, in whose favour, decree had been passed by the court below and the rights that have accrued to the respondents by non filing of appeal within the period allowed by law of limitation cannot be lightly interfered with by extending leniency to the appellants. There is no just and sufficient cause to condone the delay of as much as 474 days in filing the appeal. In the result, refusing to condone the delay of as much as 474 days in filing the Regular Second RSA 242/06 4 Appeal, I dismiss this C.M. Application. Consequently, the Regular Second Appeal also stands dismissed. 14th July, 2008 (K.P.Balachandran, Judge) tkv