IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 11TH JULY 2008 / 20TH ASHADHA 1930 RSA.No. 490 of 2008 ----------------------- AS.98/2002 of SUB COURT, MUVATTUPUZHA OS.468/1998 of MUNSIFF COURT,MUVATTUPUZHA .................... APPELLANTS/APPELLANTS/DEFENDANTS 5, 2 & 4 -------------------------------------------------------- 1. PATHROSE @ KURIACHAN, AGED 50 YEARS, KAITHAMANATHARAYIL, KOTTAPPADY KARA, KOTTAPPADY, KOTHAMANGALAM. 2. PAPPACHAN, AGED 68 YEARS, S/O.VARKEY, KAITHAMANATHARAYIL, KOTTAPPADY KARA, KOTTAPPADY, KOTHAMANGALAM. 3. JOSE @ VARGHESE, AGED 53 YEARS, KAITHAMANATHARAYIL, KOTTAPPADY KARA, KOTTAPPADY, KOTHAMANGALAM. BY ADV. SRI.PEEYUS A.KOTTAM RESPONDENTS: RESPONDENTS/PLAINTIFFS ------------------------------------------------ 1. MANI, S/O.CHACKO, MANGALATH HOUSE, KOTTAPPADY KARA, KOTTAPPADY, KOTHAMANGALAM. 2. LISSY, W/O.MANI, MANGALATH HOUSE, KOTTAPPADY KARA, KOTTAPPADY, KOTHAMANGALAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. -------------------------------------------------- C.M. Application No 411 of 2008 and R.S.A. No 490 of 2008 -------------------------------------------------- Dated this the 11th July 2008 JUDGMENT This is an application seeking to condone the delay of 116 days in filing the Regular Second Appeal. Judgment appealed against was pronounced on 15.10.2007. Copy thereof was applied for on 18.10.2007. Stamp papers called for on 06.11.2007 were produced on 09.11.2007 and copy of judgment was taken delivery of on 21.11.2007 though date fixed to appear to receive copy was 20.11.2007. However after receipt of copy of judgment on 21.11.2007 this R.S.A was filed only on 04.06.2008, after about 6 ½ months. 2. In the affidavit filed by the first appellant in support of the application for condonation of delay the reasons stated are that the appellant entrusted the case file to an advocate at Ernakulam for preparing the Second Appeal but due to financial stringency and other family problems they were not able to contact the counsel and that though they had tried their level best to settle their family problems as early as possible, due to some unpredicted interactions they could not RSA 490/08 2 take steps to settle their family affairs within a reasonable time and hence there occurred some delay in contacting the counsel and to get the Second Appeal filed in time and that there is no wilful laches or negligence on their part or on the part of the counsel in filing the R.S.A with a delay of 116 days. 3. There is no mention as to to which advocate the case file was entrusted for preparing the Second Appeal and when it was so entrusted. There is no much merit in saying that there was financial stringency as well when the court fee payable on the appeal was Rs 120/- only. Further the reason stated for the delay is that some family problems existed which could not be settled. These are not reasons which can be treated as just and sufficient cause to condone the delay of as much as 116 days in filing the R.S.A. The Limitation Act also does not exclude such time and parties who want to file appeal will have to file the appeal within the time prescribed by the law of limitation and in any event, not with such culpable delay of 116 days. It is also worthy to remember that rights which have accrued to the successful party by reason of non filing of the appeal by the aggrieved party should not be lightly interfered with and disturbed by showing leniency to the appellant who was negligent in RSA 490/08 3 the conduct of his case. There should be a finality to the litigation and such negligent acts on the part of one of the parties cannot be viewed lightly so as to enable them to protract the litigation indefinitely. However, there being no just and sufficient cause shown for the delay I refuse to condone the delay of as much as 116 days in filing the R.S.A and dismiss the C.M. Application. Consequently, the R.S.A also stands dismissed. Sd/- K.P. BALACHANDRAN Judge 11/07/2008 en [true copy]