IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 16TH JULY 2008 / 25TH ASHADHA 1930 RSA.No. 95 of 2008 ---------------------- AS.250/2001 of ADDL.DISTRICT COURT (ADHOC), KOTTAYAM OS.107/1999 of MUNSIFF COURT, ETTUMANOOR .................... APPELLANTS/RESPONDENTS/DEFENDANTS -------------------------------------------------- 1. P.J.FRANCIS, S/O. OUSEPH, RESIDING AT PLATHOTTATHIL, CHERUVANDOOR BHAGOM, KIZHAKKUM BHAGOM KARA, PEROOR VILLAGE, KOTTAYAM TALUK. 2. ANNAMMA, W/O. P.J.FRANCIS, DO- -DO- BY ADV. SRI.A.K.HARIDAS RESPONDENTS: APPELLANT/PLAINTIFF ------------------------------------------- VARKEY @ KUNJU, S/O. VARKEY, RESIDING AT PADINJAREMULLANKUZHIYIL, CHERUVANDOOR BHAGOM, KIZHAKKUM BHAGOM KARA, PEROOR VILLAGE, KOTTAYAM TALUK. BY ADV. SRI.M.P.MADHAVANKUTTY FOR R1 SRI.GOKUL DAS V.V.H. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. ------------------------------------------------------- C. M. Application No 80 of 2008 and R.S.A. No 95 of 2008 ------------------------------------------------------- Dated this the 16th July 2008 JUDGMENT This is an application filed by the appellant seeking for condonation of 113 days in filing the Regular Second Appeal. The judgment assailed was delivered on 12.01.2007. Copy thereof was applied for on 17.01.2007. Stamp papers called for on 19.02.2007 were produced on 21.02.2007 and copy was taken delivery of on 23.03.2007 the date fixed for appearance to receive copy. But the appeal was filed only as late as on 09.10.2007 after about 6 ½ months. It is the case of the appellant in the affidavit filed by him in support of the application for condonation of delay that his counsel informed the receipt of copy of judgment through a letter but he did not receive the said letter, that he was suffering from fever and was not able to move, that receipt of copy of judgment came to his knowledge only on 03.10.2007 when he contacted his counsel and immediately he approached his counsel at Ernakulam and gave instructions to file the appeal and in the meantime delay of 113 days RSA 95/08 2 had already occurred and that there is no wilful laches or negligence on his part and the delay has therefore to be condoned. 2. According to the appellant, he did not receive the letter sent by his lawyer in the court below intimating receipt of copy of judgment for preferring this Regular Second Appeal. However, according to him, he was then suffering from fever and was not able to move. There is no mention as to how long he was unable to move because of fever that he is stated to have had and for how long he was unable to move. The fact remains that there is more than six months time in between the date of receipt of a copy of judgment and 03.10.2007 the date on which appellant swears that he came to know of the receipt of copy of judgment when he contacted his counsel. This obviously means that for more than six months he has not made any enquiries as regards receipt of copy of judgment in the case to prefer appeal though he was aware that decree and judgment was passed on 12.01.2007. Time begins to run from the date of judgment and it will not wait till the appellant finds it convenient to make enquiries regarding the receipt of copy of judgment. It was upto him to do the needful. Because of his not filing appeal, rights have accrued to the successful party and the rights so accrued RSA 95/08 3 cannot be lightly disturbed accepting the bald averments made by the appellant in the affidavit which lacks bonafides and clarity. I am unable to accept the grounds stated as just and sufficient cause to condone the delay of as much as 113 days in filing the appeal. In the result, refusing to condone the delay of 113 days in filing the Regular Second Appeal I dismiss this C.M. Application. Consequently R.S.A also stands dismissed. Sd/- K.P. BALACHANDRAN Judge 16/07/2008 en [true copy] RSA 95/08 4