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.1091 of 2007 (E) ----------------------------- AS.226/2000 of II ADDL. DISTRICT COURT, TRIVANDRUM OS.1395/1994 of ADDL.M.C.,TRIVANDRUM .................... APPELLANTS/APPELLANTS/DEFENDANTS ------------------------------------------------- 1. HYDER ALI, S/O. MEERA SAHIB, HEERA, CHANTHAVILA, KUTTAIKONAM, AYIROORPARA VILLAGE, THIRUVANANTHAPURAM. 2. LAILA BEEVI, W/O. HYDER ALI, HEERA, CHANTHAVILA, KUTTAIKONAM, AYIROORPARA VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.S.ARUN RAJ SRI.S.HEMANTH SANTHOSH RESPONDENTS: RESPONDENTS/PLAINTIFFS ---------------------------------------------------- 1. THANKAMONY, D/O. PARUKUTTY, KARAYIL VEEDU, CHANTHAVILA, UTHIYARAMOOLA MURI, AYIROORPARA VILLAGE, THIRUVANANTHAPURAM. 2. RAJEELA BEEVI, D/O. SULAIKA UMMAL, MANNADUTHAKUZHI VEEDU, UTHIYARAMOOLA, AYIROORPARA VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.M.RAJAGOPALAN NAIR SRI.G.BIJU THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ C. M. Application No.821 of 2007 & R. S. A. No.1091 of 2007 ------------------------------------------------ Dated this the 15th day of July, 2008 JUDGMENT This is an application seeking for condonation of delay of 79 days in filing the appeal. The judgment under appeal was delivered on 31/07/06. Copy thereof was applied for on 01/08/06. Stamp papers called for on 19/02/07 were produced on 20/02/07 and judgment was taken delivery of on 08/03/07 though date fixed to appear to receive copy was on 07/03/07. However, appeal is filed only on 24/08/07 after more than five and a half months. The appeal is one filed by the defendants against the concurrent decree passed by the courts below in favour of the plaintiffs. 2. In the affidavit filed by the first appellant in support of the application for condonation of delay he has stated that the appeal ought to have been presented on or R. S. A. No.1091 of 2007 -2- before 05/06/07, but the appeal could not be filed in time as he could not contact his counsel as he was suffering from acute fever from 26/05/07 to 10/06/07 and he was advised to take rest for three weeks due to heavy body pain and he could contact the counsel only on 01/08/07 and the counsel required some documents for preparation of appeal and the same was collected and handed over to him only on 12/08/07 and thereafter only the appeal was prepared and filed on 24/08/07 and thus there is delay of 79 days in filing the R.S.A and the delay is neither deliberate nor wilful and has therefore, to be condoned. 3. Even assuming and taking the aforesaid grounds as true the averments made by the first appellant in the affidavit that he was suffering from fever from 26/05/07 to 10/06/07 only and advice to take rest was also only for three weeks, but he contacted his lawyer only as late as on 01/08/07. There is no explanation for this much delay. As regards R. S. A. No.1091 of 2007 -3- the further averment that the counsel required some document for preparation of the appeal, also there is no explanation as to what were the documents which were not supplied to the lawyer to enable him to file appeal. In the circumstances, I am not prepared to accept the reasons assigned for condonation of delay as just and sufficient cause. I am not of the view that the rights which have accrued to the successful party can be disturbed on such bald averments made by the aggrieved party, condoning the delay taking a lenient view in that matter as there should be a finality to the judgment. Hence, for reason of absence of any just and sufficient cause to condone the delay of as much as 79 days in filing the appeal, I dismiss the C.M. Application. Consequently, the R.S.A also stands dismissed. K.P.BALACHANDRAN, JUDGE kns/-