IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 458 of 2008()
1. VELU NADAR AMBROSE, MELE KIDAYARA VEEDU,
... Petitioner
2. CHELLAMMA PALAMMA, DO. DO.
3. CHELLAMMA BABY, MACHINGATHOTTAM PUTHEN
Vs
1. APPAVU NADAR MANI, MULICHIKUZHI VEEDU,
... Respondent
2. SHAKUNTHALA, D/O.MUTHU, MUDICHIKUZHI
3. DASAYYAN, S/O.APPAVU NADAR,
4. THANKAPPAN, S/O.APPAVU NADAR,
5. APPU, S/O.APPAVU NADAR,
6. SATHYANESAN NADAR, S/O.APPAVU NADAR,
7. THRESAMMAL, D/O.CHELLAMMA,
8. ROSILY, D/O.CHELLAMMA,
For Petitioner :SRI.V.SURESH
For Respondent : No Appearance
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :02/07/2008
O R D E R
K.P. Balachandran, J.
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C.M.Appl.No.384 of 2008 in
R.S.A.No.458 of 2008
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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
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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