IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 414 of 2008()
1. JANARDANAN NAIR, S/O.SIVASANKARAN NAIR,
... Petitioner
Vs
1. DASAN NAIR, S/O.KESAVAN NAIR,
... Respondent
2. SATHYAPALAN, S/O.RAGHAVAN NAIR,
For Petitioner :SRI.T.A.UNNIKRISHNAN
For Respondent :SRI.JOHN K.GEORGE
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :14/07/2008
O R D E R
K.P. Balachandran, J.
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C.M.Appl.No.327 of 2008 &
R.S.A.No.414 of 2008
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JUDGMENT
This is an application seeking for condonation
of delay of 42 days in filing the appeal.
Condonation of delay is vehemently opposed by the
counsel for the respondent on the ground that the
appellant has only casually explained the delay
without the details, so as to enable counting of
the days and the laches on each count is not
furnished in the affidavit and that the reasons
stated are also not grounds on which delay of 42
days in filing the appeal can be condoned,
especially when there is no explanation at all as
to why the Regular Second Appeal was filed only on
11.4.2008, though all the difficulties to file
appeal were over by 27.2.2008 and the court fee
payable and paid in the appeal was only Rs.30/-.
2. It is seen that the judgment assailed was
pronounced on 22.9.2007 and that by the judgment,
RSA 414/08 2
the decree of the court below was being confirmed.
It is against the concurrent decrees that this
appeal is filed.
3. The judgment assailed was pronounced on
22.9.2007. Copy thereof was applied for on
25.9.2007. Stamp papers called for on 27.10.2007
were produced on 29.10.2007. Copy was taken
delivery of on 7.11.2007, but, still, the appeal is
filed only on 11.3.2008. From 7.11.2007, at least,
on any day, the appeal could have been filed
without waiting till the last day, as contended by
the counsel for the respondents.
4. The case of the appellant is that he was
seriously laid up due to chickenpox during the
months of January and February; that since
22.1.2008 he was totally bed ridden and that only
by 27.2.2008, he could move freely. It is not
discernible as to how, if at all, he was seriously
laid up due to chickenpox during the months of
January and February, namely for two months and how
RSA 414/08 3
he could be totally bed ridden on account of
chickenpox from 22.1.2008 till 27.2.2008, namely,
for more than one month. Though he says that he
was affected with viral fever also, it is not
stated as to whether the viral fever was in
continuation of chickenpox. In any event, as
pointed out by the learned counsel for the
respondents, from 7.11.2007 till 22.1.2008 there
was no difficulty for him to file an appeal. The
appellant, who did not file any appeal till then
and who explains that he was laid up from 22.1.2008
till 27.2.2008, should have filed appeal
immediately thereafter, especially when, the time
to prefer appeal had already expired. But, on the
other hand, the appeal is filed only on 11.3.2008.
As rightly contended by the counsel for the
respondents, there is no just and sufficient cause
shown for not filing the appeal in time and there
is no explanation also for each day’s delay.
RSA 414/08 4
In the result, refusing to condone the delay of
42 days in filing the appeal, I dismiss this C.M.
Application.Consequently, the Regular Second Appeal
filed against the concurrent findings of the courts
below also stands dismissed.
14th July, 2008 (K.P.Balachandran, Judge)
tkv