IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 2ND JUNE 2008 / 12TH JYAISHTA 1930 RSA.No.176 of 2005 (D) ---------------------------- AS.34/1998 of SUB COURT, ATTINGAL OS.59/1996 of MUNSIFF COURT,ATTINGAL .................... APPELLANTS/APPELLANTS/DEFENDANTS: ------------------------------------------------- 1. KRISHNAN KUTTY, S/O. APPI, MANAKKATTIL PUTHEN VEEDU, PUTHUKURICHI, KADINAMKULAM VILLAGE. 2. SARADA, W/O. KRISHNANKUTTY, MANAKKATTIL PUTHEN VEEDU, PUTHUKURICHI, KADINAMKULAM VILLAGE. 3. SHEENA, D/O. KRISHNANKUTTY, MANAKKATTIL PUTHEN VEEDU, PUTHUKURICHI, KADINAMKULAM VILLAGE. BY ADV. SRI.M.BALAGOVINDAN SRI.SASITH.M.R RESPONDENT/RESPONDENT/PLAINTIFF: ------------------------------------------------ SARALA, D/O. SAROJINI, SREEVENI BHAVAN, CHITTATTINKARA DESOM, AVANAVANCHERY VILLAGE. BY ADV. SRI.N.NARAYANAN NAIR FOR R1 SRI.NAGARAJ NARAYANAN FOR R1 SRI.NAIR AJAY KRISHNAN FOR R1 SRI.SAIJO HASSAN FOR R1 SRI.A.S.SABU FOR R1 SRI.VIMAL KUMAR.A.V. FOR R1 SRI.A.G.GIRISH KUMAR FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ C. M. Appl. No.125 of 2005 & R. S. A. No.176 of 2005 ------------------------------------------------ Dated this the 2nd day of June, 2008 JUDGMENT This is an application for condonation of delay of 113 days in filing the appeal. The judgment assailed in the appeal is dt.09/07/04 and the appeal is filed on 16/02/05. Certified copy of the judgment of the first appellate court shows that for the judgment dt.09/07/04 copy application was filed only after two and a half months i.e on 30/09/04 and that though date fixed to receive copy was on 17/10/04, the copy was taken delivery of only on 10/02/05. The application is supported only by an affidavit filed by the lawyer's clerk who swears that immediately on dismissal of the appeal on 09/07/04, he gave intimation to the party regarding the dismissal; that he filed copy application after getting intimation from the party on 30/09/04; that though copy was ready on 17/10/04 by an oversight, he could collect the same only on 10/02/05; and thus, R. S. A. No.176 of 2005 -2- delay has occasioned. Even according to the above averment, it is clear that despite intimation given immediately on dismissal of the appeal, the appellants contacted the clerk for applying for copy of judgment to file second appeal only after two and a half months. There is no affidavit filed by any of the appellants swearing as to why they did not respond to the intimation given by the clerk on disposal of the appeal. Further copy which was ready to be delivered on 17/10/04 was taken delivery of only after about four months and for this the clerk owns the responsibility. It is not sufficient that some clerk owns responsibility in receiving copy after about four months of the date fixed to receive copy. The appellants cannot hope to get the delay of as much as 113 days condoned causing the lawyer's clerk to file such an affidavit swearing that the oversight has occasioned on the part of the clerk. The affidavit sworn by the clerk shows that the party was not giving necessary R. S. A. No.176 of 2005 -3- instructions as to whether any appeal is to be filed at all and copy application has to be made and even after copy application was made had the appellants been making enquiries as to whether copy was received, there would not have been so much callous negligence on the part of the lawyer's clerk to receive copy which was ready at the appropriate time. There is no just and sufficient cause assigned to condone the delay and by condoning the delay caused by the culpable neglect of the appellants the rights that has accrued to the successful party/the respondent by non-filing of the appeal at the appropriate time cannot be lightly disturbed. Hence, refusing to condone the delay of 113 days in filing the appeal, I dismiss this C.M. Application. Consequently, the R.S.A also stands dismissed. K.P.BALACHANDRAN, JUDGE kns/-