IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 26TH JUNE 2008 / 5TH ASHADHA 1930 RSA.No. 500 of 2008 ----------------------- AS.200/2003 of III ADDL.SUB COURT, KOZHIKODE OS.966/1999 of ADDL.M.C.,KOZHIKODE-II .................... APPELLANT:FIRST RESPONDENT IN A.S/PLAINTIFF IN O.S ----------------------------------------------------------------- T.N.DEVAKI ,W/O RAMACHANDRAN, RESIDING AT THEKKENOONHEEKARA HOUSE, KUNNAMANGALAM AMSOM, PAINGOTTUPURAM DESOM, P.O. KUNNAMANGALAM, KOZHIKODE. BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENTS: APPELLANTS & RESPONDENTS 2 & 3 IN A.S DEFENDANTS IN O.S. ------------------------------------------------------------------- 1. K.P. MADHAVIAMMA, W/O DAMODARAN NAIR, RESIDING AT KARANTHOOR AMSOM DESOM OF KOZHIKODE TALUK,KOZHIKODE DISTRICT. 2. EDAMUNDA SATHI DEVI, W/O PRABHAKARAN, RESIDING AT VENGERI AMSOM, VARUDUR DESOM, P.O. VENGERI, KOZHIKODE TALUK ,KOZHIKODE DISTRICT 3. K.P. LINI, D/O DAMODARAN NAIR, RESIDING AT KIZHAKKEPOLLINIYEDATH HOUSE, KARANTHUR AMSOM DESOM, P.O. KARANTHUR, KOZHIKOE TALUK, KOZHIKODE DISTRICT. 4. K.P. LISY, W/O SASI, RESIDING AT JANAKI NILAYAM, TRIPPANGOTTU AMSOM DESOM, P.O. TRIPPANGOTTY, TIRUR-8, MALAPPURAM DISTRICT. 5. KRISHNANKUTTY, S/O DAMODARAN NAIR, RESIDING AT KIZHAKKEPOKKINIYEDATH HOUSE, KARANTHUR AMSOM DESOM, P.O. KARANTHUR, KOZHIKODE TALUK, KOZHIKODE DISTRICT. 6. K.P. VASUDEVAN, S/O DAMODARAN NAIR, RESIDING AT KIZHAKKEPOKKINIYEDATH HOUSE, KARANTHUR AMSOM DESOM, P.O. KARANTHUR, KOZHIKODE TALUK, KOZHIKODE DIST. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 26/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. -------------------------------------------------------- C.M. Application No 423 of 2008 & R.S.A. No 500 of 2008 -------------------------------------------------------- Dated this the 26th June 2008 JUDGMENT This is an application for condonation of delay of 326 days in filing the appeal. Judgment under appeal was pronounced on 25.10.2006. Copy thereof was applied for on the very next day. Stamp papers were also produced on the next day of calling for stamp papers. Certified copy of judgment was ready and was taken delivery of as early as on 19.02.2007. But the appeal was filed only on 10.04.2008 after about 14 months. 2. The reason for the delay assigned in the affidavit filed by the appellant is that since the courts were closed for mid summer vacation the appeal which ought to have been filed on or before 20.05.2007 should have been filed on the re-opening date on 23.05.2007, that she is illiterate and is unaware of the consequences, that she had filed another suit O.S. No 261 of 1999 seeking to cancel the partition deed entered into between her and the respondents and one Padmanabhan Nair; that the said suit had been decreed, that respondents 1 to 5 have filed R.S.A.No 527 of 2007 before this court against the said judgment, that RSA 500/08 2 on receipt of the appeal memorandum in the said appeal she entrusted the said matter to her counsel appearing before this court and the counsel who studied the matter advised her to file an appeal against this judgment as well and it was only then that she realised that an appeal should have been filed against this judgment also; that she could not arrange funds to entrust the case to her counsel and funds could be arranged only now and hence the delay of 326 days in filing the appeal which is not on account of any wilful negligence on her part has to be condoned. 3. While making the above averments it is not disclosed as to when she received notice from this court in R.S.A No 527 of 2007 and when she contacted her lawyer in this court and when her counsel advised her to file appeal and how much time she took to arrange funds to entrust the case with the counsel to file the appeal. It is worthy to note that one-third of the court fee payable on the memorandum of appeal was only Rs 1,538/-. It is only because the appellant who received copy of judgment of the court below kept it with herself and did not seek any legal advice that she could not understand that an appeal had to be filed. Merely by making a bald statement that the appellant could arrange funds only now the delay RSA 500/08 3 of 326 days in filing the appeal cannot be condoned on such allegations. The averments will further indicate that the appellant was negligent in filing the appeal within the period of limitation. Further, the unreasonable delay of 326 days if condoned would affect the valuable rights that have accrued to the successful party by the filing of the appeal by the appellant. I am of the view in the circumstances, that there is no just and sufficient cause to condone the delay of 326 days in filing the appeal. In the result, refusing to condone the delay of 326 days in filing the R.S.A, I dismiss this C.M. Application. Consequently the R.S.A also stands dismissed. Sd/- K.P. BALACHANDRAN Judge 26/06/2008 en [true copy]