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Annamma Alias Omana vs Daniel Nadar Varghese Nadar on 18 June, 2008

Kerala High Court
Annamma Alias Omana vs Daniel Nadar Varghese Nadar on 18 June, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA.No. 1311 of 2005()


1. ANNAMMA ALIAS OMANA, D/O.BHAGAVATHY,
                      ...  Petitioner

                        Vs



1. DANIEL NADAR VARGHESE NADAR,
                       ...       Respondent

2. THRESIAMMA, KANAKUZHI THADATHARIKATHU

3. BENEDICT, S/O.MANEUL, KALLUVETTANKUZHY

4. MICHAEL, DO. DO.

5. MARTIN, DO. DO.

6. SABY, DO. DO.

7. BABY, DO. DO.

8. DANIEL NADAR, CHELLAYAN NADAR,

9. BHAGAVATHY MARY, W/O.GOPALAKRISHNAN

10. BABY, S/O.CHELLAYYAN NADAR,

11. KOCHUKUTTAN MADALAMPARA, KENATTUVILA

12. JOHNSON, DO. DO.

13. ALPHONSA, DO. DO.

14. STEPHEN, DO. DO.

                For Petitioner  :SRI.V.SURESH

                For Respondent  :SRI.P.S.RAMESH KUMAR

The Hon'ble MR. Justice K.P.BALACHANDRAN

 Dated :18/06/2008

 O R D E R
              K.P.BALACHANDRAN, J.
          ------------------------------------------------
                    I. A. No.1291 of 2008,
           C. M. Application No.833 of 2005 &
                  R. S. A. No.1311 of 2005
          ------------------------------------------------
           Dated this the 18th day of June, 2008

                         JUDGMENT

This Court vide order dt.02/06/08

directed the counsel for the appellant who was

granted two weeks’ time as prayed for to cure

the defects, that defects are to be cured

positively in two weeks. The defect was that

service was not complete on respondents 3, 5,

6, 9 and 11 to 14 on C.M. Application

No.833/05 seeking condonation of delay of 155

days in filing the R.S.A. The R.S.A is one

filed on 15/11/05 with a delay of 155 days.

Even after lapse of two and a half years the

appellant was not able to have notice served

on the respondents in the C.M. Application

enabling this Court to pass order one way or

the other in the delay condonation petition.

Today counsel for the petitioner has filed

R. S. A. No.1311 of 2005 -2-

I.A.1291/08 seeking for condonation of delay

in taking steps. On perusal of the affidavit

accompanying C.M.Application No.833/05, it is

seen that the reasons assigned to have the

delay condoned is quite unsatisfactory. The

judgment under appeal was delivered on

31/01/04; copy of the judgment was applied for

on 03/02/04; stamp papers called for on

01/06/04 were produced on 04/06/04 and though

copy was ready and 18/03/05 was fixed as the

date to appear and receive copy, it was

received only after four months on 18/07/05.

According to the petitioner, he was under the

impression that his counsel would intimate him

when copy is received and that in the

meanwhile, he fell sick and was suffering from

Asthma and Bronchitis and therefore, he could

go over to the office only on 20/10/05 and

could understand that the copies were taken

delivery of by his lawyer on 18/07/05.

R. S. A. No.1311 of 2005 -3-

2. There is absolutely no evidence to

show that the petitioner was having any

ailment or that he was bedridden nor does he

say that he was bedridden. Such lame excuses

to cover up the wanton neglect on the part of

the appellant coupled with the neglect on the

part of the counsel or his clerk to receive

copy of judgment when date was fixed to

receive copy are not circumstances which

enable such inordinate delay being condoned.

3. It is worthy to note that the

successful party cannot wait indefinitely to

see whether any appeal is filed from the

judgment in his favour. Rights that have

accrued to the successful party by reason of

non-filing of the appeal cannot be lightly

interfered with also when the defeated party

files appeal at his own whims and fancies

taking his own sweet time. I am not satisfied

that just and sufficient cause exists to

R. S. A. No.1311 of 2005 -4-

condone the delay of as much as 155 days in

filing the appeal.

4. In the result, refusing to extent time

prayed for vide I.A.1291/08, I dismiss the

said I.A as also C.M.Application No.833/05 in

compliance with the order dt.02/06/08.

Consequently, this R.S.A also stands

dismissed.

K.P.BALACHANDRAN,
JUDGE
kns/-

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