IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 11TH JUNE 2008 / 21ST JYAISHTA 1930 RSA.No. 664 of 2005 ------------------------ AS.165/2003 of D.C. & SESSIONS COURT,KOZHIKODE OS.87/1998 of PRL.M.C.KOZHIKODE-I .................... APPELLANT:APPELLANT/PLAINTIFF --------------------------------------- PARIYANGATTU GOPINATHAN, S/O.NARAYANAN, RETIRED JAWAN, PARIYANGATTIL KATCHERI AMSOM,DESOM, KOZHIKODE TALUK. BY ADV. SRI.M.P.RAMNATH RESPONDENTS: RESPONDENTS:DEFENDANTS -------------------------------------------------- 1. PARIYANGATTU AMMU, D/O. SANKARAN, MANAGER, PUTHOOR U.P. SCHOOL, KATCHERI AMSOM,DESOM KOZHIKODE TALUK. 2. MULLAPPALLI LAKSHMIKUTTY, D/O. DEVAKI AMMA, KARANNUR AMSOM, PUTHOOR DESOM, KOZHIKODE TALUK. 3. PUTHIYATTIL GOPI, S/O. APPU, KARANNUR AMSOM, PUTHOOR DESOM, KOZHIKODE TALUK. 4. KIZHAKKE PARAMBATH RAJAN, FATHER IS NOT KNOWN, KARANNUR AMSOM,PUTHOOR DESOM, KOZHIKODE TALUK. BY ADV. SRI.K.P.BALASUBRAMANYAN FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. ------------------------------------------------- C. M. Application No 433 of 2005 and R.S.A. No 664 of 2005 ------------------------------------------------ Dated this the 11th June 2008 JUDGMENT This is an application to condone the delay of 60 days in filing the R.S.A. Judgment under appeal was pronounced on 15.01.2005 and copy application was filed only as late as on 02.03.2005, after one and a half months. Copy was received on 23.03.2005 and the appeal was filed on 06.07.2005, after about three and a half months. 2. In the affidavit filed by the appellant in support of the C.M. Application, it is alleged that advocate's clerk had filed copy application before the first appellate court immediately after the appellate judgment was pronounced but the same was dismissed for non production of stamp papers and it was thereafter that a fresh copy application was filed on 02.03.2005 and the copy was delivered on 23.03.2005. It is further alleged that he was informed of the receipt of the copy of judgment but he could not personally go and collect the judgment and decree from the advocate's office at Kozhikode because he was under absolute bed rest and ayurvedic treatment and had undergone a serious major operation on his spinal cord during the year 2004 and that bed rest was RSA 664/05 2 necessitated because of a severe relapse of spinal pain which required strict adherence to rest and treatment procedures and therefore he could not come over to Ernakulam for signing the required papers after the preparation of the second appeal and it is thus that there is a delay of 60 days in filing the second appeal. Though it is stated that an application for copy had been filed and that happened to be dismissed for non production of stamps, there is no evidence on that aspect and the number of any such application is not mentioned. It is also not mentioned as to how a fresh application happened to be filed without applying for restoration of the earlier application which happened to be dismissed for non production of stamps. As regards the illness of the appellant also there is no record produced except the averment made by the appellant that he was ill and bed ridden. 3. Counter affidavit is filed by the first respondent opposing the application for condonation of delay. It is worthy to note that there is no valid and convincing explanation by the appellant to have the delay of 60 days in filing the appeal being condoned. On making some bald allegations without any bonafides the appellant cannot aspire to have the delay got condoned, when by such condonation of RSA 664/05 3 delay, rights which have accrued to the successful party by non filing of the appeal will be disturbed to his prejudice without just and sufficient cause. In the absence of just and sufficient cause for condonation of delay the application for condonation of delay does not deserve to be allowed condoning the delay. In the result, I dismiss the C.M. Application. Consequently R.S.A also stands dismissed. Sd/- K.P. BALACHANDRAN Judge 11/06/2008 en [true copy]