IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 16TH JULY 2008 / 25TH ASHADHA 1930 RSA.No. 564 of 2007 --------------------------------- AS.75/2003 of II ADDL.SUB COURT, KOZHIKODE OS.882/1999 of ADDL.M.C., KOZHIKODE-II .................... APPELLANT/APPELLANT/PLAINTIFF: MADATHINKUTTIYIL SEKHARAN NAIR, AGED 71 YEARS, KUNHIMALU AMMA, RESIDING AT VELLAKKATT, FEROKE AMSOM, NELLOOR DESOM, KOZHIKODE TALUK. BY ADV. SRI.T.SETHUMADHAVAN SRI.P.G.PARAMESWARA PANICKER (SR.) SRI.K.JAYESH MOHANKUMAR RESPONDENTS/RESPONDENTS/DEFENDANTS: 1. DAKSHAYANI AMMA, AGED 68 YEARS, D/O.KUNHIMALU AMMA, CHERUVANNUR AMSOM DESOM, KOZHIKODE TALUK. (DIED) 2. OTTUPARAPURATH CHINNAN NAIR, AGED 66 YEARS, S/O.KUNHIMALU AMMA, KUZHIMANNA AMSOM, DESOM, ERNADU TALUK, MALAPPURAM DISTRICT. 3. KUMBALATH PARAMBIL GANGADHARAN NAIR, AGED 69 YEARS, S/O. -DO- VELIPRAM AMSOM, DESOM, KOZHIKODE TALUK. 4. KUMBALATH PARAMBIL RADHAKRISHNAN NAIR, AGED 59 YEARS, S/O. DO. DO. 5. KUMBALATH PARAMBIL SREEDHARAN NAIR, AGED 56 YEARS, S/O. -DO- -DO- 6. PUTHALATH GOPINATHAN NAIR, AGED 53 YEARS, S/O. -DO-, EDAKKADU AMSOM, DESOM, KOZHIKODE TALUK. 7. KADUKKAMBALATH THURAKKUNNIYIL PREMAVATHI, AGED 69 YEARS, RESIDING AT PALAKADANKUTTIPARAMBA, W/O.UNNIKRISHNAN NAIR, FAROKE AMSOM, NALLOOR DESOM, KOZHIKODE TALUK. 8. PALAKKADAN KUTTIPARAMBIL VENUGOPALAN NAIR, AGED 47 YEARS, S/O.UNNIKRISHNAN NAIR, FEROKE AMSOM, NALLOOR DESOM, KOZHIKODE TALUK. 9. PALAKKADAN KUTTIPARAMBIL SUNDARAN NAIR, AGED 43 YEARS, DO. DO. 10. PALAKKADAN KUTTIPARAMBIL SUBRAMANIAN NAIR, AGED 40 YEARS, S/O.UNNIKRISHNAN NAIR, -DO- -DO- 11. PALAKKADAN KUTTIPARAMBIL BABY, AGED 36 YEARS, DO. DO. 12. MADATHIN KUTTIYIL VIJAYAKUMARAN NAIR, AGED 53 YEARS, S/O.DAKSHAYANI AMMA, CHERUVANNUR AMSOM DESOM, KOZHIKODE TALUK. 13. MADATHIN KUTTIYIL NARAYANANKUTTY NAIR, AGED 46 YEARS, S/O. -DO- -DO- -DO- 14. MADATHIN KUTTIYIL RAGHAVANKUTTY NAIR, AGED 43 YEARS, S/O. -DO-, -DO- -DO- 15. MADATHINKUTTIYIL KALLYANIKUTTY @ VALSALA, DO. DO. 16. MADATHINKUTTIYIL VISWANATHAN, S/O DO. DO. BY ADV. SRI.NIRMAL.S FOR R12-16 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- C.M.Appl.No.378 of 2007 & R.S.A.No.564 of 2007 --------------------------- JUDGMENT This is an application seeking for condonation of delay of 182 days in filing the Regular Second Appeal (wrongly stated as Writ Appeal). The application is vehemently opposed by the counsel for the respondents, according to whom, the delay is not 182 days as seen corrected nor 178 days as originally stated in the affidavit, but is actually 254 days. 2. The judgment assailed was pronounced on 10.4.2006. Copy thereof was applied for on the same day. Stamp papers called for on 14.6.2006 were produced on 16.6.2006. Copy was taken delivery of on 13.7.2006, though the date fixed to appear and receive the copy was 22.7.2006. According to the respondents, the appeal should have been filed on or before 13.10.2006, but the appeal is filed only on 11.4.2007. RSA 564/07 2 3. On a proper calculation, the delay in filing the appeal is 179 days only. The reasons stated in the affidavit filed by the appellant, in support of the application for delay condonation, are that after the judgment of the lower appellate court, the first respondent passed away on 16.8.2006; that after her death, there was a talk of settlement between the parties; that when the settlement talks were going on, he hoped that there may not be any necessity to file any second appeal; that on that belief he did not entrust the case records to his counsel at Ernakulam; that while the settlement talks were going on, the contesting respondents obtained a Possession Certificate and a Building Permit for the construction of a building in the suit property claiming exclusive right, contrary to the understanding that was arrived at in the compromise talk; that however, by subsequent conduct of the respondents, he was convinced that the talk of settlement initiated by the respondents RSA 564/07 3 is only an eye wash without any bona fides; that it was during the first week of March that he came to know about the building permit obtained by the contesting respondents; that immediately he contacted his counsel and entrusted the papers with him for preferring a second appeal and that thus, there occurred a delay of 182 days (actually only 179 days) in filing the Regular Second Appeal (wrongly stated as Writ Appeal). 4. In the counter affidavit filed by the 14th respondent, also on behalf of respondents 12 to 16, they contend that the first respondent Dakshayani Amma passed away on 17.7.2006, as evidenced by Annexure-1 Death Certificate and not on 16.6.2006 as alleged by the appellant; that there was absolutely no settlement talk with the appellant; that the appellant is none other than the brother of Dakshayani Amma, the deceased first respondent; that the appellant had objected to issuance of building permit and on his objection, notice was RSA 564/07 4 issued by the Nallalam Grama Panchayat under Section 406(1)(2) of the Municipalities Act directing them to remove the constructions already effected; that the said order is dated 19.1.2007 and that was challenged by them before this Court by filing W.P.(C)No.11/07; that even as on 19.1.2007 and immediately before that, the appellant/petitioner was disputing the building plan before the Panchayat authorities; that copy of order dated 30.4.2007 of the Nallalam Grama Panchayat is Annexure-2, from which it is clear that no settlement talk as alleged by the appellant/petitioner was going on and that the reasons stated for condoantion of delay are absolutely false. 5. The appellant/petitioner has filed a reply affidavit, wherein, he has further stated that the respondents obtained the building permit only to torpedo the amicable settlement and that in fact settlement talks were in progress after the death RSA 564/07 5 of the first respondent. 6. There is absolutely no mention in the affidavit accompanying the C.M. Application or in the reply affidavit as to with whom was the compromise talks in progress, as to what were the terms of the compromise suggested, on which no agreement could be arrived at and as to why for such a long period no appeal was filed and the appellant waited for about six months to have a settlement arrived at without filing a second appeal. The averment of the petitioner that he was under the belief that the matter would be settled between the parties is no ground to condone the delay of as much as 179 days in filing the appeal and that is also no ground to exclude the period under the provisions of the Limitation Act. There is absolutely nothing on evidence to show that the parties ever had any talk between them to settle the matter, so as to persuade the appellant not to prefer any appeal. On the other hand, the RSA 564/07 6 allegation of the appellant that there were compromise talks after the death of the first respondent is vehemently denied also by the contesting respondents. without anything on record to believe the statements of the appellant/ petitioner in his affidavit, especially when, that is strongly denied by the respondents, there is no reason why the bald statement that appeal was not filed as compromise talks were in progress is to be believed for the purpose of condoning the delay of as much as 179 days in filing the Regular Second Appeal. It is to be borne in mind that there should be a finality to the litigation and a party, who is not at all vigilant in having his cause pursued by filing an appeal within the time prescribed by Law of Limitation, cannot, by making such averments, which are disputed also by the respondents, have the delay of as much as 179 days in filing the appeal to be got condoned. In the absence of just and sufficient cause shown in a convincing manner, RSA 564/07 7 the rights that have accrued to the successful party by non filing of appeal by the aggrieved party, cannot be interfered with and disturbed, after such a length of time showing leniency to the party, who was negligent in pursuing his remedies. There being no just and sufficient cause shown to exist in not filing the appeal within time, refusing to condone the delay of as much as 179 days in filing the Regular Second Appeal, I dismiss this C.M. Application. Consequently, the Regular Second Appeal also stands dismissed. 16th July,2008 (K.P.Balachandran, Judge) tkv