IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 12TH JUNE 2008 / 22ND JYAISHTA 1930 RSA.No.334 of 2008 (F) --------------------------- A.S.37/2000 OF SUB COURT, NEYYATTINKARA O.S.124/96 OF THE PRL. MUNSIFF'S COURT, NEYYATTINKARA ................ APPELLANT/2ND APPELLANT/2ND DEFENDANT. ------------------------------------------------------- MARY ANTO, S/O. SIMON, RESIDING AT MARY SADANAM, R.C.STREET, BALARAMAPURAM, THIRUVANANTHAPURAM. BY ADV. SRI.V.SURESH SRI.G.SUDHEER RESPONDENTS: RESPONDENTS 2 TO 6 IN FIRST APPEAL/PLAINTIFFS. --------------------------------------------------------------------------------- 1. MUTHAMMAL SARAMMAL, BEENA NIVAS, NEERAZHY LANE, ULLOOR, THIRUVANANTHAPURAM. 2. KALISTAR BARNABAS, SAJU VILLA, THANIKADAVU, ANCHUTHENGU, KADAKAVOOR DESOM, CHIRAYINKIL. 3. JOSEPHINE VALSALA, J.J.COTTAGE, PANAYARAKUNNU, ANTHIYOOR DESOM, KOTTUKAL VILLAGE, NEYYATTINKARA. 4. JOSY, S/O. ANTONY, -DO- -DO-. 5. ANTO, S/O. AUGUSTIN, JANAVA MANDIR, R.C.STREET, BALARAMAPURAM, PALLICHAL VILLAGE, THIRUVANANTHAPURAM. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ C. M. Application No.268 of 2008 & R. S. A. No.334 of 2008 ------------------------------------------------ Dated this the 12th day of June, 2008 JUDGMENT This is an application for condonation of delay of 334 days in filing the appeal. The judgment under appeal was delivered on 03/01/06; copy thereof was applied for on 16/01/07, after more than a year and though 30/06/07 was the date fixed to receive copy, copy was taken delivery of only after about a month on 28/07/07. The counsel who was appearing for the appellant in the court below and the appellant, have filed affidavits in support of the application for condonation of delay. 2. In the affidavit filed by the appellant it is stated that he had instructed his lawyer to obtain copy of judgment and the counsel has promised to inform him as soon as the copy was ready and accordingly, he waited R. S. A. No.334 of 2008 -2- for a few months and when he contacted the counsel, it was informed that the copy is not yet ready and the counsel instructed him to wait for some more time; that thereafter, also he was making enquiries and he was being repeatedly told that the copy is not received; that finally in January, 2007, he went to the copying section of the court and directly made enquiries and he was informed that the copy application filed by his counsel has been dismissed for default; that on the matter being informed to the counsel, he expressed surprise and told him that the mistake was that of his clerk and submitted a fresh copy application on 16/01/07; that notification for payment of charges was published on 18/06/07 and that was paid on 27/06/07 and copy was issued on 28/06/07 and the counsel gave him the certified copies along with his affidavit as to the mistakes on the part of his clerk on 18/07/07 and the appeal which ought to have R. S. A. No.334 of 2008 -3- been filed on 03/04/06 is therefore, filed with a delay of 334 days. In the affidavit of the counsel also, it is stated that he was under the impression that his clerk must have applied for copy and it was only when the appellant himself contacted the concerned section that it was understood that copy application was dismissed for default and therefore, he filed another copy application and as per the said application copy was received and that was delivered over to the appellant. The affidavit of the lawyer is sworn to on 18/07/07 but still the appeal is filed only on 16/08/07 after about a month therefrom. 2. It is worthy to note that the number of copy application which is sated to have been dismissed for non-production of stamp papers is not mentioned. It is also not mentioned as to when the said application was dismissed. Simply by making an averment that a R. S. A. No.334 of 2008 -4- copy application which was filed earlier was dismissed for default, the delay of as much as 334 days in filing the Second Appeal cannot be condoned so as to disrupt the finality obtained to the judgment by non-filing of appeal. The rights that have accrued to the successful party cannot be lightly be interfered with condoning the delay in filing the appeal and entertaining appeal on such lame excuses which are neither convincing nor just and sufficient cause for condoning the delay. 3. In the result, refusing to condone the delay of as much as 334 days in filing the appeal, I dismiss this C.M. Application. Consequently, this R.S.A also stands dismissed. K.P.BALACHANDRAN, JUDGE kns/-