IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 9TH JULY 2008 / 18TH ASHADHA 1930 RSA.No. 1097 of 2007 ----------------------------------- RFA.22/2003 of SUB COURT, QUILANDY OS.81/1992 of MUNI-MAGI.COURT, PERAMBARA .................... APPELLANT/APPELLANT/1ST DEFENDANT: CHENAPARAMBIL ANNAMMA, W/O.XAVIER, AGED 43, SWASTHAM, PERAMBRA AMSOM AND DESOM OF KOYILANDY TALUK, REP.BY HUSBAND AND THE POWER OF ATTORNEY HOLDER, CHENAPARAMBIL XAVIER, S/O. AUGUSTY, AGED 49, KAYANNA AMSOM, KODAKKALLUR DESOM, KOYILANDY TALUK. BY ADV. SRI.C.P.MOHAMMED NIAS SRI.SRINATH GIRISH RESPONDENTS/RESPONDENTS/PLAINTIFF & 2ND DEFENDANT: 1. KODAKKALLUR CHATHOTH KUNHIKKELU NAIR, S/O. UMMAMMA AMMA, AGED 56, KAYANNA AMSOM, KODAKKALLUR DESOM, KOYILANDY. 2. CHURINGANATT CHALIL JANAKI AMMA, D/O. UMMAMMA, AGED 53, SWASTHAM, PANANGAD AMSOM DESOM OF KOYILANDY TALUK. BY ADV. SRI.C.VALSALAN FOR R1 SRI.K.RAKESH ROSHAN FOR R1 SMT.THUSHARA.V FOR R1 THIS REGULAR SECOND APPEALHAVING COME UP FOR ADMISSION ON 09/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- I.A.No.825 of 2007 & R.S.A.No.1097 of 2007 --------------------------- JUDGMENT This is an application to condone the delay of 268 days in filing the Regular Second Appeal. The judgment impugned was pronounced on 16.11.2006. Copy thereof was applied for on 17.11.2006. Stamp papers called for on 11.12.2006 were produced on 12.12.2006. Copy was taken delivery of on 20.12.2006, but the appeal is filed only on 12.12.2007, after almost an year. 2. The application for condonation of delay is accompanied by the affidavit of the Power of Attorney Holder of the appellant, according to whom, the appeal ought to have been filed on or before 19.3.2007, but could be filed only on 12.12.2007, with a delay of 268 days. The cause shown for the delay is that he was suffering from viral hepatitis since 4.3.2007 and was under treatment at the Community Health Centre, Perambra RSA 1097/07 2 and that recently he was admitted in the said Health Centre for vertigo and in such a condition, he could not take care of the follow ups to be taken in filing the above appeal. 3. According to him, he is able to walk freely only now and thereafter he entrusted the file to his Lawyer at Ernakulam and the appeal is filed with a delay of 268 days, which is not deliberate. A certificate issued by the Medical Officer of the Community Health Centre, Perambra is also produced. It is dated 26.11.2007. The Medical Officer has certified therein that the deponent was seen by him with complaints of features suggestive of viral hepatitis and was under his treatment symptomatically since 4.3.2007. It is further certified that recently he was admitted with complaints of vertigo under Dr.Deepa as an in patient (IP 4328) on 23.11.2007. 4. In the first instance, when he was having viral hepatitis, he was not admitted as an in RSA 1097/07 3 patient. It is not certified as to for how many days or weeks was the deponent under treatment for viral hepatitis from 4.3.2007. However, thereafter, he is getting admitted in the hospital for treatment of vertigo only on 23.11.2007, after 8½ months from the date on which he was under treatment for viral hepatitis. He has no case that the treatment undergone by him lasted for eight months and it was followed by ailment on account of vertigo. Even assuming that what is certified in the medical certificate is true, there is no justification at all for having not filed appeal within time and in any event, at least within a reasonable time, after he recovered from viral hepatitis. In the instant case, he has filed appeal only after about an year of his receiving the copy of judgment appealed against. On such flimsy excuses, the delay of as much as 286 days cannot be condoned to the detriment of the successful party, to whom rights have accrued consequent on the RSA 1097/07 4 aggrieved party not having preferred any appeal in time. There is no just and sufficient cause to condone the delay of as much as 268 days in filing the Regular Second Appeal. In the result, refusing to condone the delay of as much as 268 days in filing the Regular Second Appeal, I dismiss this C.M. Application. Consequently, the Regular Second Appeal also stands dismissed. 9th July, 2008 (K.P.Balachandran, Judge) tkv