Insufficient cause for condoning the delay in filing an appeal under Section 5 of the Limitation Act leads to dismissal of the appeal.

ORDER :

K. MURALI SHANKAR, J.

The above application has been filed under Section 5 of Limitation Act, to condone the delay of 978 days in filing the second appeal, challenging the judgment and decree made in A.S.No.24 of 2018, dated 30.06.2022 on the file of the learned Subordinate Judge (Camp Court) at Padmanabhapuram, confirming the judgment and decree, dated 08.06.2014 passed in O.S.No.81 of 2014 on the file of the Principal District Munsif Court, Padmanabhapuram.

2.The respondents as plaintiffs filed the suit in O.S.No.81 of 2014, claiming the reliefs to declare their right of residence in the ancestral family house bearing Door No.11-16/11-1 of Pechipparai Panchayat situated in the first item of the suit property and to award maintenance at Rs.800/- per month till the remarriage of the first plaintiff and till the majority of the second plaintiff from the first defendant and from his other assets including the suit properties and also for permanent injunction restraining the defendants from evicting the plaintiffs from the ancestral shared family house and also from alienating the suit properties.

3.The appellants/defendants filed their written statement and contested the suit. The defendants filed a counter claim, claiming mandatory injunction directing the plaintiffs to vacate the suit schedule house within a specific time to be fixed by the Court. The learned Principal District Munsif, Padmanabhapuram, after framing necessary issues and after full trial, passed the judgment, dated 08.06.2017, partly allowing the suit and granting the reliefs of declaration of right of residence in the house situated in the first item of the suit property and also permanent injunction as claimed, but dismissed the suit with regard to the relief of separate residence and maintenance and also dismissed the counter claim of the defendants. Aggrieved by the said judgment and decree, the defendants filed two appeals in A.S.No.23 of 2018 and A.S.No.24 of 2018, challenging granting of decree in favour of the plaintiffs and dismissal of their counter claim. The learned Subordinate Judge, upon considering the materials available on record and on hearing the arguments of both the sides, passed the judgment and decree, dated 30.06.2022, dismissing both the appeals. Challenging the dismissal of the appeal in A.S.No.24 of 2018, the defendants filed the present second appeal along with the above application to condone the delay of 978 days in filing the second appeal.

4. The case of the petitioners, as canvassed in the petition for condonation of delay, is that after the judgment and decree were passed in A.S.No.24 of 2018 on 30.06.2022, the first petitioner filed a copy application without delay and obtained certified copies from the first appellate Court. However, thereafter, she was unable to mobilise the necessary funds. It is further stated that the second petitioner, aged about 65 years, was suffering from age-related ailments and that her husband, who was the first defendant, passed away on 18.02.2024, due to which she faced considerable difficulties in carrying on her day-to-day life. It is also averred that she was unable to meet her counsel and instruct him to file the second appeal. According to the petitioners, when she finally met her Advocate, she was immediately advised to file the present application seeking condonation of delay. It is asserted that the delay is neither wilful nor wanton, but occasioned by the unfortunate circumstances referred to above, and that the petitioners would be put to irreparable loss and hardship if the delay is not condoned.

5. The first respondent, who filed the suit for her and on behalf of her minor son, the second respondent/second plaintiff, filed a counter affidavit, disputing the affidavit av