IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 15TH JULY 2008 / 24TH ASHADHA 1930 RSA.No.1138 of 2004 ------------------------- AS.246/2000 of III ADDL. DISTRICT COURT, TRIVANDRUM OS.14/1992 of SUB COURT,ATTINGAL .................... APPELLANT/APPELLANT/DEFENDANT: --------------------------------------------- JALALUDEEN, S/O. KASSIM PILLAI, AGED 44 YEARS, RESIDING AT PUTHUVAL VILA VEEDU, CALLED AS CHARUVILA, PUNNAYILKUNNATHU MURI, MELTHONNAKKAL VILLAGE, THIRUVANANTHAPURAM DIST. BY ADV. SRI.P.K.MUHAMMED SRI.S.VIJI RESPONDENTS/RESPONDENTS/PLAINTIFF: --------------------------------------------------- 1. GOPALAN SUDEVAN, AGED 44 YEARS, PUTHUVAL PUTHEN VEEDU, PUNNAYILKUNNATHU MURI, MELTHONNAKKAL VILLAGE, THIRUVANANTHAPURAM DIST. 2. SUDHA, D/O. NARYANAN, PUTHUVAL PUTHEN VEEDU, PUNNAYILKUNNATHU MURI, MELTHONNAKKAL VILLAGE, THIRUVANANTHAPURAM DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ R. S. A. No.1138 of 2004 ------------------------------------------------ Dated this the 15th day of July, 2008 JUDGMENT C. M. Application No.695 of 2004 Service is complete and there is no appearance for the respondents. Counsel for the appellant is absent and there is no representation even on his behalf. 2. This is an application to condone the delay of 147 days in filing the R.S.A. The judgment appealed against is one pronounced on 29/10/03. Copy thereof was applied for on 15/11/03 after about 15 days. Stamp papers called for on 27/02/04 were produced on that day and copy of judgment was taken delivery of on 28/02/04, but the appeal is presented only as late as on 06/10/04 after more than seven and a half months. R. S. A. No.1138 of 2004 -2- 3. In the affidavit filed by the appellant in support of the application for condonation of delay his case is that he is a chronic bronchitis patient unable to travel as per the advice of the Doctor; that the case bundle along with judgment and decree was entrusted to his counsel's office on 04/03/04; that his counsel advised him that he needs some time to study the case and to prepare the appeal; and that he should come on the reopening day itself to file the appeal as the court is to close for midsummer vacation on 08/04/04 and is to reopen only on 17/05/04. It is worthy to note that the time in between the entrustment of the file with the counsel on 04/03/04 and the date of closing of courts on 08/04/04 is more than a month. Though courts reopened on 17/05/04 this appeal is filed only on 06/10/04. The explanation of the appellant on this aspect is that due to chronic R. S. A. No.1138 of 2004 -3- bronchitis and urinal problem he was completely laid up and was under treatment of Doctor T.Pappa, Assistant Surgeon, Medical College Health Unit at Pangappara, Thiruvananthapuram from 05/05/04 to 26/09/04 viz. for more than four and a half months and he was strictly advised to take rest and not to undertake any travel. The medical certificate is one issued on 26/09/04 and the certification is to the effect that the first appellant is suffering from chronic bronchitis with renal failure and that he considers that a period of absence from duty of 145 days with effect from 05/05/04 to 26/09/04 is absolutely necessary for the restoration of his health. The certification is as if the patient is suffering from chronic bronchitis with renal failure and the advice is to take rest for 145 days therefrom. But obviously the certificate is one issued when the treatment and the R. S. A. No.1138 of 2004 -4- period of rest was over on 26/09/04. Further, it is to be noted that the Medical College Health Unit at Pangappara is only of the nature of a primary health centre and I fail to understand how a chronic bronchitis patient with renal failure is to be treated for 145 days as an outpatient. I have no doubt that the certificate issued by the Assistant Surgeon Dr.T.Pappa is only to help the appellant to have the delay condoned and was being issued on request and it is not that the appellant was under treatment and was bedridden and could not move about for 145 days. In the circumstances, I am not prepared to accept the explanation of the appellant for having caused delay of 145 days in filing the R.S.A as just and sufficient cause to condone the delay and disrupt the finality attained to the verdict of the court below and to disturb the rights that have accrued to the successful R. S. A. No.1138 of 2004 -5- party. 4. In the above view, refusing to condone the delay of as much as 147 days in filing the R.S.A, I dismiss this C.M. Application. Consequently, the R.S.A also stands dismissed. K.P.BALACHANDRAN, JUDGE kns/-