IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 2ND JULY 2008 / 11TH ASHADHA 1930 RSA.No.458 of 2008 (D) ---------------------------- AS.13/1998 of SUB COURT,NEYYATTINKARA OS.585/1996 of II ADDL.M.C.,NEYYATTINKARA .................... APPELLANTS/APPELLANT IN IST APPEAL/PLAINTIFF -------------------------------------------------------------- 1. VELU NADAR AMBROSE, MELE KIDAYARA VEEDU, NALLOORVATTOM DESOM, KULATHOOR VILLAGE, NEYYATTINKARA. 2. CHELLAMMA PALAMMA, DO. DO. 3. CHELLAMMA BABY, MACHINGATHOTTAM PUTHEN VEEDU, KARUMANOOR DESOM, PARASSALA VILLAGE, NEYYATTINKARA TALUK. BY ADV. SRI.V.SURESH SRI.G.SUDHEER RESPONDENTS: RESPONDENTS IN IST APPEAL/DEFENDANTS ----------------------------------------------------------------------- 1. APPAVU NADAR MANI, MULICHIKUZHI VEEDU, KARUMANOOR DESOM, PARASSALA, NEYYATTINKARA TALUK. 2. SHAKUNTHALA, D/O.MUTHU, MULICHIKUZHI VEEDU, KARUMANOOR DESOM, PARASSALA, NEYYATTINKARA TALUK. 3. DASAYYAN, S/O.APPAVU NADAR, PAPPANAMTHOTTAM PUTHEN VEEDU, KARUMANOOR DESOM, PARASSALA VILLAGE, NEYYATTINKARA TALUK. 4. THANKAPPAN, S/O.APPAVU NADAR, PAPPANAMTHOTTAM PUTHEN VEEDU, KARUMANOOR DESOM, PARASSALA VILLAGE, NEYYATTINKARA TALUK. 5. APPU, S/O.APPAVU NADAR, PAPPANAMTHOTTAM PUTHEN VEEDU, KARUMANOOR DESOM, PARASSALA VILLAGE, NEYYATTINKARA TALUK. 6. SATHYANESAN NADAR, S/O.APPAVU NADAR, PAPPANAMTHOTTAM PUTHEN VEEDU, KARUMANOOR DESOM, PARASSALA VILLAGE, NEYYATTINKARA TALUK. 7. THRESAMMAL, D/O.CHELLAMMA, PAPPANAMTHOTTAM PUTHEN VEEDU, KARUMANOOR DESOM, PARASSALA VILLAGE, NEYYATTINKARA TALUK. 8. ROSILY, D/O.CHELLAMMA, PAPPANAMTHOTTAM PUTHEN VEEDU, KARUMANOOR DESOM, PARASSALA VILLAGE, NEYYATTINKARA TALUK. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- C.M.Appl.No.384 of 2008 in R.S.A.No.458 of 2008 --------------------------- JUDGMENT This is an application for condonation of delay of 636 days in filing the appeal. The judgment assailed was pronounced on 16.11.2005. Copy thereof was applied for only on 29.9.2007 and though the copy of the judgment was taken delivery of on 23.10.2007, this appeal is presented only on 4.12.2007. 2. In the affidavit filed by the third appellant in support of the application for condonation of delay, the averments are that the first appellant was looking after the affairs regarding the appeal on behalf of all the appellants; that he instructed their Advocate to apply for and obtain certified copies of judgment and decree for the purpose of filing appeal and he promised to do so; that thereafter also the first appellant kept on going to the office of the RSA 458/08 2 counsel to ascertain whether copies are obtained; that then he was told that he need not keep on coming and asking for the copies; that he was assured that he would inform them when copies are ready; that accordingly they waited for communication from the Lawyer; that in September 2007, they came to know that all other parties in the appeal had received copies from their respective counsel; that therefore she went to the office of the counsel again and made enquiries and then the counsel informed her that copies are not received; that thereupon she made enquiry in the office of the court personally on 29.9.2007 and came to know that no copy application had been filed; that when asked, counsel told her that it appears that his Clerk has omitted to file copy application; that immediately on her insistence a copy application was made; that on 25.10.2007 they were informed that copies have been received from court; that she went over to the office of the counsel and received copies on 27.10.2005; that she RSA 458/08 3 was told that ninety days' time will be available to file an appeal to the High Court of Kerala; that in the meanwhile, she fell ill with viral fever and was unable to move from the house due to illness that appellants 1 and 2 did not attend to the matter in her absence and waited for her to get better under the impression that they have got ninety days' time to file appeal; that they went to the office of the present counsel on 25.11.2007 and only when he informed that they realised that they will not get ninety days' time to file appeal, as no copy application was made in time and that thus there occurred a delay of 636 days in filing the appeal. 3. No notice is being ordered on this C.M. Application, as it is felt unnecessary to order notice. It appears that the party and the counsel are under the impression that any amount of delay can be got condoned by filing an application making some bald averments and that too behind the back of the Lawyer, who was appearing in the court below RSA 458/08 4 and his Clerk. There is no affidavit filed by the Clerk or the Lawyer in support of the application for condonation of delay. As regards what the first appellant told her, he has got only hearsay knowledge. The first appellant who is stated to be one who was looking after the case also has not filed any affidavit swearing to facts within his knowledge to support the petition for condonation of delay. It has to be remembered that there must be an end to litigation and the successful party, to whom rights have accrued by reason of non filing of any appeal assailing the decree in their favour, cannot be called upon to answer the appeal after such a length of time and the rights so accrued to the successful party cannot lightly be interfered with. I see no just and sufficient cause to condone the delay of as much as 636 days in filing the Regular Second Appeal. In the result, refusing to condone the delay of as much as 636 days in filing the appeal, I dismiss this C.M. Application. Consequently, the Regular RSA 458/08 5 Second Appeal also stands dismissed. 2nd July, 2008 (K.P.Balachandran, Judge) tkv