KAVERI AMMAL Vs. C. CHOKKALINGAM

JUDGEMENT

(1.) The petition has been laid by the petitioner/appellant to condone the delay of 922 days in filing the second appeal.

(2.) The respondent/plaintiff has levied the suit against the petitioner for declaration, mandatory injunction, recovery of possession and permanent injunction and the said suit was decreed on 19.07.2011. The first appeal preferred by the petitioner in A.S.No.28 of 2011 has also been dismissed by the first appellate court on 20.10.2014 and thereby concurred with the judgment and decree of the trial court. As could be seen from the averments contained in the petition, it is found that the petitioner is very well aware of the dismissal of her appeal by the first appellate court on 20.10.2014. According to her, she has applied for the certified copy of the judgment and decree on 29.10.2014 and it is also seen that she has received for the certified copy of the judgment and decree of the first appellate court on 08.07.2015. However, the petitioner has not come forward with the second appeal challenging the judgment and decree of the first appellate court in time and there is a delay of 922 days in filing the second appeal. To condone the same, the present petition has come to be laid.

(3.) Two reasons are projected by the petitioner for the delay. One is that for want of funds, according to her, she could not prefer the appeal in time. The other reason is that she was suffering from fever during the material point of time and on that account, she is unable to prefer the appeal in time. The abovesaid two reasons have been stoutly challenged by the respondent by filing a counter with reference to the same. The cause projected by the petitioner that on account of paucity of funds, she was unable to prefer the second appeal in time, as such, could not be accepted, particularly, when there is no acceptable material pointing to the same. In this connection, it has to be noted that the respondent has levied the execution proceedings against the petitioner and the petitioner is found to have contested the abovesaid execution proceedings by engaging a counsel. Accordingly, it is found that only after the execution proceedings have been levied by the respondent, with a view to delay and stifle the same one way or the other, it is found that the petitioner has belatedly come forward with the appeal and accordingly, unable to substantiate the delay in preferring the same. As regards the plea of illness projected by the petitioner, despite the same having been totally challenged by the respondent, to buttress the abovesaid reason, there is no material worth acceptance on the part of the petitioner. If really the petitioner has been suffering from fever, she would have taken the treatment with reference to the same and to substantiate the abovesaid cause, she would have projected acceptable and reliable materials pointing to the same, atleast prima-facie. On the other hand, nothing has been projected other than her bald allegation that she had been suffering from fever during the material point of time. Thus, it is seen that the abovesaid cause projected by the petitioner is totally unacceptable and liable to be rejected. As above pointed out, when it is found that the petitioner is able to resist the execution proceedings laid by the respondent by engaging a counsel and furthermore, when it is also noted that the petitioner is aware of the dismissal of her appeal by the appellate court on 20.10.2014, if really, the petitioner has got any cause to challenge the judgment and decree of the Courts below, as rightly putforth by the respondent's counsel, the petitioner would have evinced interest to prefer the appeal in time. On the other hand, she had been sleeping over the matter without any interest in prosecuting the case further and only after the execution proceedings had been initiated by the respondent, it is evident that she had come forward with some untenable reasons and accordingly, she is unable to support the same by placing convincing and reliable materials. It is thus found that, as rightly putforth by the respondent's counsel, only with a view to prevent the respondent from enjoying the fruits of the decree obtained by him in the matter, the petitioner has come forward with the application to condone the delay in filing the appeal.