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. 1069 of 2004 ------------------------- AS.2/1996 of III ADDL. DISTRICT COURT, KOLLAM OS.1515/1990 of PRL.M.C., KOLLAM .................... APPELLANTS/APPELLANTS/PLAINTIFFS: -------------------------------------------- 1. C.M.VARGHESE, S/O. MATHUNNI, C.P. HOUSE, PERUMPUZHACHERRY, KOTTAMKARA VILLAGE. 2. OMANA AMMA, W/O. C.M.VARGHESE, C.P. HOUSE, PERUMPUZHACHERRY, KOTTAMKARA VILLAGE. BY ADV. SRI.LEGY ABRAHAM SRI.C.N.SIVANKUTTY SRI.M.L.SHAJAN RESPONDENTS: RESPONDENTS/DEFENDANTS: ------------------------------------ 1. B.BABU, S/O. BHARGAVI, CHARUVILA PUTHENVEEDU, PERUMPUZHA CHERRY, KOTTAMKARA VILLAGE. 2. MANI, W/O. BABU, CHARUVILA PUTHENVEEDU, PERUMPUZHA CHERRY, KOTTAMKARA VILLAGE. 3. BHASKARAN PILLAI, THEKKETHUNDIL VEEDU, S/O. EASWARI AMMA, PERUMPUZHACHERY, KOTTAMKARA VILLAGE (DIED). 4. LALITHAMMA, AGED 40, W/O. BHASKARAN PILLAI, THEKKETHUNDIL VEEDU, PERUMPUZHA CHERY, KOTTAMKARA VILLAGE. 5. AJITHAKUMARI, AGED 21 YEARS, D/O. LALITHAMMA, THEKKETHUNDIL VEEDU, PERUMPUZHA CHERY, KOTTAMKARA VILLAGE. 6. AJAYA KUMAR, AGED 19 YEARS, S/O. BHASKARAN PILLAI, THEKKETHUNDIL VEEDU, PERUMPUZHA CHERY, KOTTAMKARA VILLAGE. 7. ESWARI AMMA, AGED 65 YEARS, THEKKETHUNDIL VEEDU, PERUMPUZHA CHERY, KOTTAMKARA VILLAGE. BY ADV. SRI.BRIJESH MOHAN FOR R1 & 2 SMT.RESMI G. NAIR 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 633 of 2004 and R.S.A. No 1069 of 2004 -------------------------------------------------------- Dated this the 16th July 2008 JUDGMENT The respondents have not filed any counter and there is no representation even on behalf of the respondents. Heard the counsel for the petitioners/appellants. 2. This is an application for condonation of delay of 223 days in filing the Regular Second Appeal. Judgment under appeal was pronounced on 19.09.2003. Copy thereof was applied for on 13.04.2004, much after the appeal period. On the said application copy of judgment was delivered on 21.05.2004 and this appeal was filed on 09.08.2004. 3. In the affidavit filed by the first appellant in support of the C.M. Application, his case is that a copy application was filed by his advocate appearing in the court below on 20.09.1993 the very next day of pronouncement of judgment by the lower appellate court but due to an oversight the advocate's clerk did not know the date of calling for stamp papers and consequently copy application was RSA 1069/04 2 dismissed; that during that time he was hospitalised suffering from paralysis, that after his treatment he came to the office of his lawyer and realised that the copy application was dismissed due to non appearance, that on 13.04.2004 he filed fresh copy application for certified copy of judgment ad the said copy was ready on 21.04.2004 and he received the copy on 21.05.2004, that due to his physical condition and other exigencies he was not able to contact his advocate at Ernakulam in time for filing the Second Appeal and he came to the advocate's office at Ernakulam on 05.08.2004 and engaged him for preparing the Second Appeal and thus there is a delay of 223 days in filing the appeal. The appeal was filed only on 09.08.2004. According to him the delay was not wilful or for reasons of negligence on his part and is therefore to be condoned. 4. It is worthy to note that the application has been filed suppressing all relevant facts. Number of the copy application which is stated to have been filed on 20.09.2003 is not given. Date of calling for stamp papers on the said application is also not stated. Date of dismissal of the said application is not stated. Though the appellant says that during that time he was hospitalised suffering from paralysis it is not stated as to from which date to which date he RSA 1069/04 3 was hospitalised. The vague averment is that after his treatment he came over to the office of the advocate and realised that the copy application was dismissed due to non appearance. The dismissal was not for the reason of his non appearance but for the reason of not producing the stamp papers. Even copy of judgment on the second copy application, if at all it is the second copy application as sworn in the affidavit was ready on 21.04.2004 and the date fixed to receive copy was 24.04.2004 but copy has been taken delivery of only on 21.05.2004. The reason stated is that the advocate's clerk was not available during vacation. He further states that due to his physical condition and other exigencies he was not able to contact his advocate at Ernakulam to make arrangements to file Second Appeal and he contacted his lawyer on 05.08.2004. 5. It is worthy to note that the appellant was taking things lightly despite the fact that even by the time he received copy of the judgment on 21.05.2004 the appeal time had already expired. Still he contends that he contacted his lawyer on 05.08.2004 and arranged to file Second Appeal and the reason for the delay stated is “due to physical condition and other exigencies”. What was his physical condition; whether he was laid up or under treatment in a RSA 1069/04 4 hospital etc. as also as to what were the other exigencies which prevented him from making arrangements to file appeal are not disclosed. On such vague averments delay of as much as 223 days in filing the Regular Second Appeal cannot be condoned so as to disrupt the rights accrued to the successful party by non filing of the appeal within the period prescribed by the Law of Limitation. There is no just and sufficient cause to condone the delay of as much as 223 days in filing the R.S.A. This C.M. Application in the circumstances, deserves only to be dismissed. 6. In the result, I dismiss this C.M. Application refusingto condone the delay of 223 days in filing the R.S.A. Consequently the R.S.A also stands dismissed. Sd/- K.P. BALACHANDRAN Judge 16/7/08 en [true copy]