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. 537 of 2007 --------------------- AS.83/2003 of I ADDL.SUB COURT,TRIVANDRUM OS.33/2001 of PRL.M.C.,TRIVANDRUM .................... APPELLANT/DEFENDANT ----------------------------- MURUGAN, S/O.LATE SHANMUGHAN PILLAI, RESIDING AT TC NO.39/225(1), ARACHAR PURAYIDOM, KOTHANAL MUDUKKU, CHALAI, THIRUVANANTHAPURAM. BY ADV. SRI.G.SUDHEER RESPONDENTS: PLAINTIFF ----------------------------- HARIF USMAN CHEENA, PROPRIETOR, NEO FASHIONS, TC.39/8(2), CHALAI, THIRUVANANTHAPURAM. 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 355 of 2007 and R.S.A. No 537 of 2007 ------------------------------------------------- Dated this the 3rd June 2008 JUDGMENT This appeal is posted before me in the Defect list as no process is paid for notice being issued on C.M. Application No 355 of 2007. From a perusal of the application I see that there is no purpose to be served in completing the service in the said C.M. Application as the delay is as much as 355 days in filing the R.S.A. Judgment under appeal was delivered on 18.01.2006. Copy was applied for only on 16.01.2007, after an year. Though copy was taken delivery on 20.01.2007 the appeal is filed only on 12.04.2007. 2. In the affidavit filed by the appellant in support of the C.M. Application his case is that he had made arrangements to get attested copy of the appellate court judgment with the former clerk of his counsel in the court below, that he told him that he will intimate him and there was no intimation from him for a long time and therefore he went to advocate's office and found that the said clerk left the office long ago and therefore he made arrangements for getting another copy and he received it on 20.01.2007 and that as he was suffering from severe back pain he was RSA 537/07 2 advised to take rest and not to travel long distance and therefore he could travel to Ernakulam and make arrangements to file the R.S.A only now and thus there is delay of 355 days in filing the R.S.A. The averments are not supported by any affidavit of his lawyer in the court below and in fact the affidavit is filed behind his back. It is not upto the appellant to say that the clerk of his lawyer in the court below left the office. Even if the clerk had left the office, if at all an application had been made that application could be proceeded with to get certified copy and if at all no application had been made it is futile to allege that the clerk had told him that he would obtain copy and then intimate him. It is also worthy to note that even after receiving copy on 20.01.2007 this appeal which was already delayed and time expired, was presented only on 12.04.2007 for which explanation of the appellant is that for back pain he was advised to take rest. There is absolutely no evidence on that aspect either. It is worthy to note that when no appeal is filed within the time prescribed by the Limitation Act right accrues to the successful party and to disturb that right there must be cogent reasons and should not be lightly interfered with favouring a party especially when the delay is as much as 355 days and it is not properly and convincingly RSA 537/07 3 explained. I see no just and sufficient cause to condone the delay of as much as 355 days in filing the R.S.A. In the result, I dismiss the application for condonation of delay. Consequently the R.S.A also stands dismissed. Sd/- K.P. BALACHANDRAN Judge 03/06/208 en [true copy]