IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 22ND SEPTEMBER 2011 / 31ST BHADRA 1933 RSA.No. 844 of 2011() --------------------- AS.61/2010 of DISTRICT COURT, MANJERI OS.79/2006 of SUB COURT, MANJERI .................... APPELLANT/APPELLANT/1ST DEFENDANT ----------------------------------------------------- PANNIKKODAN SREEDEVI, W/O. LATE NARAYANAN, MANIMOOLI AMSOM, P.O.MANIMOOLI, VARAKULAM, NILAMBUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.P.SAMSUDIN RESPONDENT(S): RESPONDENTS/RESPONDENTS/PLAINTIFF AND DEFENDANTS --------------------------------------------------------------- 1. PANNIKKODAN ASOKAN, S/O. LATE NARAYANAN, MANIMOOLI AMSOM, P.O.MANIMOOLI-679 333, VARAKULAM, NILAMBUR TALUK, MALAPPURAM DISTRICT. 2. SULOCHANA, W/O. KRISHNAN KUTTY, ANAPPAN BHOODANAM, NILAMBUR TALUK, MALAPPURAM DISTRICT-679 328. 3. NALINI, W/O. PARATHOTTUNGAL RAMACHANDRAN, VALLIKKAD, VAZHIKKADAVU AMSOM, P.O.VAZHIKKADAVU-679 328, NILAMBUR TALUK, MALAPPURAM DISTRICT. 4. SREEJAN, S/O. LATE NARAYANAN, VAZHIKKADAVU AMSOM, P.O.VAZHIKKADAVU-679 328, NILAMBUR TALUK, MALAPPURAM DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.844 of 2011 ............................................ DATED THIS THE 22nd DAY OF SEPTEMBER, 2011 JUDGMENT First defendant in O.S.79 of 2006 on the file of Sub Court, Manjeri is the appellant. First respondent is the plaintiff and other respondents, other defendants in the suit. The suit was filed for partition and separation of share of the first respondent. Learned Sub Judge as per preliminary decree dated 24.6.2009 directed division of the plaint schedule property and allotment of the share due to the first respondent finding that first respondent, appellant and respondents 2 to 4 are entitled to 1/5 share each. Appeal was filed after a delay of more than one year, along with I.A.832 of 2010, a petition under Section 5 of the Limitation Act, to condone the delay. Learned Sub Judge dismissed the application and consequently dismissed the appeal. It is challenged in the second appeal. 2. Learned counsel appearing for appellant was heard. The argument of the learned counsel is that first appellate court should have condoned the delay and disposed the appeal on RSA 844/2011 2 merits and even though there was some delay, that delay was explained and as appellant has a meritorious case, in the interest of justice delay is to be condoned. 3. Learned counsel made available the copy of I.A.832 of 2010 filed before the District Court to condone the delay, under Section 5 of the Limitation Act. The affidavit only discloses that appellant was aged 72 years and was suffering from Rheumatism and other illness and therefore she was not able to file an appeal within the statutory period and as delay was caused, it is to be condoned. 4. It cannot be disputed that appellant is bound to explain the delay in filing the appeal. The delay is more than one year. The question is whether there was any sufficient explanation for the delay. As stated earlier, the affidavit does not show valid reasons for not filing the appeal. Even if the reason shown is accepted, it will satisfy only the reason for not filing the appeal within the statutory period. The affidavit only discloses that she could not file an appeal due to Rheumatism and her old age and other illness before the expiry of the statutory period. There is no explanation why the appeal was not filed for a period of one RSA 844/2011 3 year, after expiry of the statutory period for filing the appeal. In such circumstances, first appellate court rightly dismissed the application for condonation of delay. As held by Apex Court in Lanka Venkateswarlu V. State of A.P(2011 SC 1199), the concept of liberal approach, justice oriented approach or substantial justice cannot be employed to jettison the substantial law of limitation. As no substantial question of law is involved, the appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk