IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 11TH JUNE 2008 / 21ST JYAISHTA 1930 RSA.No. 196 of 2008 --------------------------------- AS.1/1997 of SUB COURT, TIRUR OS.256/1994 of MUNSIFF COURT, TIRUR .................... APPELLANTS/APPELLANTS/DEFENDANTS: 1. VELLALI KUNHELI'S SON CHAKKUTTY, AGED 71, RESIDING AT OZHOOR AMSOM AND AYYAYA DESOM OF TIRUR TALUK. 2. KRISHNAN, S/O.CHAKKUTTY, AGED 40, DO. DO. 3. RAMAKRISHNAN,S/O.CHAKKUTTY, AGED 38, DO. DO. BY ADV. SRI.E.NARAYANAN RESPONDENTS/RESPONDENTS/PLAINTIFFS: 1. CHOYI, S/O.THEROTTIL KARI, AGED 83, RESIDING AT OZHOOR AMSOM AND AYYAYA DESOM OF TIRUR TALUK. 2. NARAYANAN, S/O.THEROTTIL CHOYI, AGED 48, DO. DO. BY ADV. SRI.VINOD RAVINDRANATH SRI.SAJU.S.A THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- C.M.Appl.No.159 of 2008 & R.S.A.No.196 of 2008 --------------------------- JUDGMENT This is an application for condonation of delay of 352 days in filing the appeal. The judgment under appeal was delivered on 28.7.2006 and the copy thereof was applied for only on 10.8.2006. The stamp papers were called for on 1.9.2006, but were produced only on 11.9.2006. The date fixed to appear and receive the copy was 13.9.2006, but the copy was taken delivery of only on 18.9.2006 and this appeal is filed after more than one year and one month of taking delivery of copy of the judgment, viz., only on 31.10.2007. 2. In the affidavit filed by the second appellant in support of the application, it is stated that the appeal ought to have been filed on or before 26.10.2006, but could be filed only on 31.10.2007. The delay that is occasioned in applying for copy, in submitting stamp papers and RSA 196/08 2 in receiving copy of the judgment under appeal are all alleged to be the omission on the part of the Clerk of his Lawyer in the court below. As regards the delay in filing the appeal, the explanation is that on receipt of copy of the impugned judgment, the Lawyer's Clerk sent a letter to him, but, unfortunately, he received the same only in the last week of December 2006, viz., after three months of receipt of copy of the judgment. The letter so stated to have been received is not produced. The reason for further delay stated is that he was laid up due to severe back pain, which disabled him to walk freely and that therefore, he could entrust the file for appeal being filed only on 31.10.2007. There is no averment as to how long was he having back pain so as to render him unable to walk freely. No medical certificate also is produced. In short, all the averments are made without any supporting evidence and cannot be considered, except as a ruse to get the inordinate RSA 196/08 3 delay of 352 days in filing the appeal condoned. 3. It is worthy to note that if leniency is shown to the appellant and the delay is condoned, this Court will be interfering with the valid rights that have accrued to the successful party by reason of non filing of the appeal in time and the reasons are neither just nor sufficient to condone the delay and are not established either. In the result, this is not a case where the inordinate delay of 352 days in filing the appeal can be condoned as prayed for. This application is, hence, dismissed. Consequently, the Regular Second Appeal also stands dismissed. 11th June, 2008 (K.P.Balachandran, Judge) tkv