IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 1091 of 2007()
1. HYDER ALI, S/O. MEERA SAHIB,
... Petitioner
2. LAILA BEEVI, W/O. HYDER ALI,
Vs
1. THANKAMONY, D/O. PARUKUTTY,
... Respondent
2. RAJEELA BEEVI, D/O. SULAIKA UMMAL,
For Petitioner :SRI.S.ARUN RAJ
For Respondent :SRI.M.RAJAGOPALAN NAIR
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :15/07/2008
O R D E R
K.P.BALACHANDRAN, J.
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C. M. Application No.821 of 2007 &
R. S. A. No.1091 of 2007
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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/-