IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 3RD JUNE 2008 / 13TH JYAISHTA 1930 RSA.No. 446 of 2008 ----------------------- AS.202/2006 of I ADDL.DISTRICT COURT, ERNAKULAM OS.164/2004 of III ADDL.SUB COURT, ERNAKULAM .................... APPELLANT: 2ND RESPONDENT//2ND PLAINTIFF ------------------------------------------------------ V.A.THOMAS WILLIAM, AGED 49 YEARS, S/O.LATE V.J.ALEXANDER @ CHANDY, VARIATH HOUSE, CHERANALLORE VILLAGE, CHERANALLORE P.O. BY ADV. SRI.T.N.SURESH SRI.ROY THOMAS RESPONDENTS: APPELLANTS/DEFENDANTS ------------------------------------------------ 1. PHILOMINA CHANDY, AGED 78, W/O.LATE V.J.ALEXANDER @ CHANDY, VARIATH HOUSE, CHERANALLOORE VILLAGE, CHERANALLOORE P.O. 2. V.A.ANTONY, AGED 56, S/O.LATE V.J.ALEXANDER @ CHANDY, VARIATH HOUSE, CHERANALLOORE VILLAGE, CHERANALLOORE P.O. 3. BRIJITH WILLIAM, AGED 52 YEARS, D/O.LATE V.J.ALEXANDER @ CHANDY, VARIATH HOUSE, CHERANALLOORE VILLAGE, CHERANALLOORE P.O. 4. V.A.GREGORIOUS, AGED 47, S/O.LATE V.J.ALEXANDER @ CHANDY, VARIATH HOUSE, CHERANALLOORE VILLAGE, CHERANALLOORE P.O. 5. V.A.SILVESTER, AGED 42, S/O.LATE V.J.ALEXANDER @ CHANDY, VARIATH HOUSE, CHERANALLOORE VILLAGE, CHERANALLOORE P.O. 6. MARGRET CLETUS, AGED 54, D/O.LATE V.J.ALEXANDER @ CHANDY, VARIATH HOUSE, CHERANALLOORE VILLAGE, CHERANALLOORE P.O. 7. V.A.BASIL, AGED 45, S/O.LATE V.J.ALEXANDER @ CHANDY, VARIATH HOUSE, CHERANALLOORE VILLAGE, CHERANALLOORE P.O. 8. V.A.JOSEPH SARTHO, AGED 51, S/O.LATE V.J.ALEXANDER @ CHANDY, VARIATH HOUSE, CHERANALLOORE VILLAGE, CHERANALLOORE P.O., CHULLI HOUSE, CHELAMATTAM KARA, CHELAMATTAM VILLAGE. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. ------------------------------------------------------ C.M. Application No 375 of 2008 and R.S.A. No 446 of 2008 --------------------------------------------------------- Dated this the 3rd June 2008 JUDGMENT This is an application for condonation of delay of 100 days in filing the R.S.A. Judgment under appeal was delivered on 19.10.2007. Copy of the judgment was applied for only on 04.02.2008. The date fixed for delivery of the copy was 06.03.2008 and the copy was taken delivery of only on 24.03.208. Even in the matter of applying for copy of judgment there is a delay of more than three and a half months. 2. In the affidavit filed by the appellant in support of the application for condonation of delay the reason stated is that clerk attached to the office of his counsel has failed to apply for certified copy of judgment and decree in time and such a mistake has come to his notice after verifying the publication of notice for affixing stamp for the copies and found that there was no application; that thereafter a fresh application has been filed but when the stamps were called for the very same clerk attached to the office of the layer again failed to note the same and the application was dismissed. Hence another application was filed on 04.02.2008 wherein RSA 446/08 2 stamps were called for on 11.02.2008 and the same was produced on 14.02.2008 and copy was ready on 01.03.2008 and the same was taken delivery of only on 24.03.2008 and since he was engaged with his employment in KSRTC he could not contact his counsel in time and he was under the bonafide impression that the High Court is closed for summer vacation and the appealcould be filed only after reopening and that is how the delay of 100 days has occasioned. 3. Affidavit is sworn to by the appellant and not by the clerk of his lawyer in the court below despite the fact that allegations are made against clerk of his lawyer in the court below for not applying for copy in time and thereafter also in not producing stamps when called for, thereby causing dismissal of the copy application. Strangely enough there is no mention about the number and date of the copy application which happened to be dismissed. Such vague allegations and the allegation that the appellant was under the impression that the High Court is closed for summer vacation etc. are not just and sufficient cause to condone the delay of 100 days so as to disturb the finality of the judgment attained by not filing the appeal in time. There is no sufficient cause to condone the delay of 100 days in filing the R.S.A. This application for condonation of RSA 446/08 3 delay of 100 days in filing the appeal is hence dismissed. Consequently the R.S.A also shall stand dismissed. Sd/- K.P. BALACHANDRAN Judge 03/06/2008 en [true copy]