IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 19TH JUNE 2008 / 29TH JYAISHTA 1930 RSA.No. 52 of 2006 ------------------------------- AS.88/2000 of ADDL. DISTRICT COURT FAST TRACK (ADHOC) II, KOTTAYAM OS.216/1991 of MUNSIFF COURT, VAIKOM .................... APPELLANTS/APPELLANTS/DEFENDANTS 1 & 2: 1. DEVASSIA XAVIER, S/O. DEVASSIA, ERATTANIYIL HOUSE, MANJOOR KARA, MANJOOR VILLAGE, KOTTAYAM DISTRICT. 2. DEVASSIA DEVASSIA, S/O. DEVASSIA, -DO- -DO-. BY ADV. SRI.T.KRISHNAN UNNI (SR.) RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANTS 3 AND 4: 1. K.J. GEORGE, S/O. JOSEPH, KUDILIL HOUSE, MANJOOR KARA, MANJOOR VILLAGE, KOTTAYAM DISTRICT. 2. DEVASSIA JOSE, S/O. DEVASSIA, ERATTANIYIL HOUSE, DO. DO. 3. MARIA DAS, NEENDUSSERIL HOUSE, DO. DO. (DELETED) Deleted as per order dt. 9.4.08 on IA 902/08 BY ADV. SRI.M.S.UNNIKRISHNAN FOR R1 SMT.S.KARTHIKA FOR R1 SRI.M.R.ANISON FOR R1 SRI.T.R.RAJESH FOR R1 SMT.K.P.GEETHA MANI FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.P. Balachandran, J. --------------------------- C.M.Appl.No.32 of 2006 & R.S.A.No.52 of 2006 --------------------------- JUDGMENT This is an application to condone the delay of 66 days in filing the appeal. The judgment under appeal was pronounced on 26.3.2005. The copy thereof was applied for only on 5.4.2005. The stamp papers called for on 10.6.2005 were produced only on 14.6.2005. The copy was taken delivery of on 27.6.2005 and the appeal is filed only on 16.11.2005. 2. In the affidavit filed by the first appellant in support of the C.M. Application, it is stated that the appeal ought to have been filed on or before 16.9.2005, but could be filed only on 16.11.2005 with a delay of 66 days; that the Clerk attached to the office of the Lawyer in the court below did not intimate him about receipt of copy and he was under the impression that he will be informed as soon as copy is received; that only on RSA 52/06 2 14.11.2005 when he enquired about the matter, he knew that copy was received on 27.6.2005; that the delay occurred is not wilful and that therefore, the delay has to be condoned. 3. From the averments it appears that the parties are under the impression that the counsel or the Clerk would go over to their residence and deliver copy of judgment so as to prefer an appeal. If at all they want to file an appeal, it is their look out to enquire about the matter and limitation begins to run not from the date on which they make enquiries at their sweet will and pleasure, but from the date of passing of the judgment by the first appellate court. This affidavit has been sworn to behind the back of the Lawyer in the court below and his Clerk and there is nothing in evidence to show that no communication had been issued to the petitioner/ appellant from the office of the Lawyer. However, it is seen that from 27.6.2005 till 14.11.2005 no enquiry at all was RSA 52/06 3 made by the petitioner/appellant as to whether copy applied for on disposal of the appeal by the first appellate court on 26.3.2005 is received or not. I do not find any reason why such delays are to be condoned, unsettling the finality of judgments and interfering with the rights that have accrued to the successful parties by reason of non filing of the appeal in time. I am not of the view that there is just and sufficient cause to condone the delay in the circumstances stated above. In the result, refusing to condone the delay of as much as 66 days in filing the appeal, I dismiss this C.M. Application. Consequently, the Regular Second Appeal also stands dismissed. 19th June, 2008 (K.P.Balachandran, Judge) tkv