IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 11TH JULY 2008 / 20TH ASHADHA 1930 RSA.No. 291 of 2007 ----------------------- AS.67/1993 of SUB COURT, OTTAPPALAM OS.66/1985 of MUNI-MAGI.COURT,PATTAMBI .................... APPELLANT/APPELLANT IST DEFENDANT --------------------------------------------- RAMACHANDRAN NAIR, AGED 67 YEARS, S/O.CHOLAYIL VADAKKETHIL MADHAVI AMMA, CHERUKODE AMSOM AND DESOM, OTTAPALAM TALUK. BY ADV. SRI.E.R.VENKATESWARAN SRI.R.SREEHARI RESPONDENTS: RESPONDENTS/PLAINTIFF & DEFENDANTS 2 TO 6 ------------------------------------------------------------------------- 1. RAMACHANDRAN S/O.CHOLAYIL VADAKKE PUTHEN VEETTIL PARUKUTTY AMMA, CHERUKODE AMSOM, OTTAPALAM TALUK. 2. KRISHNANKUTTY NAIR, S/O.CHOLAYIL PUTHENVEETTIL CHEROTTI @ AMMU AMMA, CHERUKODE AMSOM, OTTAPALAM TALUK. 3. NARAYANAN NAIR, S/O.KELATH PARVATHY AMMA, CHERUKODE AMSOM & DESOM, OTTAPALAM TALUK. 4. KUNHAMOHAMMED, S/O.KUNHIRA PARAKKAL AYAMU, CHERUKODE AMSOM, DESOM, OTTAPPALAM TALUK. 5. ASSIA UMMA, W/O.KUNHAMOHAMMED, CHERUKODE AMSOM, DESOM, OTTAPALAM, TALUK. 6. MOHAMMED, S/O.VADAKKUMCHALIL, MOHAMMED, CHERUKODE AMSOM, DESOM, OTTAPALAM TALUK. BY ADV. SRI.SANTHEEP ANKARATH FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. ----------------------------------------------------- C.M. Application No 181 of 2007 and R.S.A. No 291 of 2007 ----------------------------------------------------- Dated this the 11th July 2008 JUDGMENT This is an application seeking for condonation of delay of 156 days in filing the appeal. Judgment assailed was pronounced on 23.06.2006. Copy of the judgment was applied for on 24.06.2006. Stamp papers called for on 13.07.2007 were produced on 15.07.2006 and copy of the judgment was taken delivery of on 21.07.2006 when the date fixed to appear to receive copy was 20.07.2006. 2. In the affidavit filed in support of the application for condonation of delay it is the case of the appellant that he was informed by his counsel in the court below regarding receipt of judgment but he was physically not well due to old age and was not in a position to contact the lawyer at his office at Ottappalam and therefore he could contact him only in the last week of January 2007, that it was thereupon that he advised him that the case is one which is fit to be taken up in appeal, that on account of financial difficulties and ill health he could not go over to Ernakulam and engage a lawyer and therefore could file the appeal RSA 291/07 2 only on 22.03.2007. Thus, in short, his case is that after receipt of copy of judgment on 21.07.2006 till last week of January 2007 he was not physically well due to old age and could not contact his lawyer and that he collected the case file and the judgment from the lawyer in the court below during the last week of January 2007 and he could file the appeal only on 22.03.2007 because of financial difficulties and ill health. It is worthy to note that the court fee payable and paid is only is Rs 20/-. It is contended by the counsel for the appellant that there are other expenses also to file the appeal and that the appellant is a person aged 67 years and he will be having financial difficulties and also ill health. These are not grounds under the Limitation Act to extend the period of limitation. There is absolutely nothing on evidence to show that the appellant had any ill health or that he was laid up so as to disable him to do the needful in the matter of filing the appeal in time. Even by the time he received copy of the judgment from his lawyer in the court below, the time to prefer the appeal had expired and it is in such a case that further delay also is caused. Only if a party is having the will, he will be able to find out ways and means to have it done. This is a case where the appellant was taking his own sweet time to file the appeal. In RSA 291/07 3 such cases it will not be proper to condone the delay showing leniency to him to the detriment of the successful party to whom rights have accrued consequent on the non filing of the appeal in time. Such right cannot be lightly disturbed on such bald averments made by the party who was callous and negligent in the matter of conducting his case. There is absolutely no just and sufficient cause to condone the delay of as much as 156 days in filing the Second Appeal. In the result, I dismiss the C.M. Application refusing to condone the delay of as much as 156 days in filing the appeal. Consequently this R.S.A also stands dismissed. Sd/- K.P. BALACHANDRAN Judge 11/07/2008 en [true copy]