IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 19TH JUNE 2008 / 29TH JYAISHTA 1930 R.S.A.No. 212 of 2008() --------------------- A.S.NO.372/2004 of THE DISTRICT COURT,KOZHIKODE O.S.NO.435/2000 of THE MUNSIFF COURT,KOZHIKODE-II .................... APPELLANT/PLAINTIFF: KOYAKUTTY, S/O.LATE KUNHIKOMU HAJI, AGED 38 YEARS, ERANIKKAL HOUSE, PERUVAYAL AMSOM, POOVATTUPARAMBA DESOM. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENTS/DEFENDANTS 1 TO 4: 1. PATHUMMA UMMA, D/O. LATE ALI, AGED 88 YEARS, ERANHIKKAL HOUSE, PERUVAYAL,POOVATTUPARAMBA. 2. KUTTUSA,S/O.LATE KUNHIKOMU HAJI, AGED 52 YEARS, PALIYIL HOUSE, PERUVAYAL, POOVATTUPARAMBA. 3. ASHRAF, S/O.HUSSAIN, AGED 30 YEARS, ERANHIKKAL HOUSE, PERUVAYAL, POOVATTUPARAMBA. 4. ABDUPPA, S/O.LATE KUNHIKOMU HAJI, AGED 43 YEARS, ERANHIKKAL HOUSE, PERUVAYAL, POOVATTUPARAMBA. BY ADV. SRI.E.NARAYANAN - R2 & R3 SRI.R.SUDHEESH - R4 SMT.M. MANJU - R4 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19/06/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J ------------------------------ C.M. Appl. No. 175 of 2008 and R.S.A. No. 212 of 2008 ------------------------------ Dated this the 19th day of June, 2008 JUDGMENT This is an application for condonation of delay of 93 days in filing the Regular Second Appeal. The fourth respondent has filed counter affidavit objecting to the condonation of delay sought for. 2. The judgment under appeal was passed on 08/08/2007 and copy thereof was applied for only on 21/01/2008. The stamp papers called for on 22/01/2008 were produced only on 25/01/2008. The copy was taken delivery of on 31/01/2008, but the Regular Second Appeal is filed only on 18/02/2008 with a delay of 93 days. 3. In the affidavit filed by the appellant in support of the C.M. Application, it is alleged after entrusting the file, his counsel told him that when the appeal comes up for hearing he will send a letter to him; that thereafter the counsel for the appellant sent a letter to him when the case came up for hearing, but the same was not recieved by him; that in the 3rd week of January 2008, he contacted his Lawyer and then only he understood that the appeal was rejected for non- R.S.A. No. 212/ 2008 Page numbers payment of balance court fee on 8/08/2007; that immediately he was applying for copy of the judgment and obtaining it and thus, a delay of 93 days has been caused in filing the appeal. 4. There is no affidavit filed by the counsel, who was appearing in the court below, in support of what the appellant has sworn to in the affidavit. It is not at all likely that while entrusting the file the counsel would have told him that when the appeal comes up for hearing, he will send a letter, but when the case came up for hearing he sent a letter, but was not recieved by the appellant. In appeals, the case will not come up for final hearing unless on admission the balance court fee is also paid. It was because balance court fee was not paid that the appeal was rejected by the lower appellate court on 08/08/2007. It is further seen that the appeal was filed in 2004 and when it came up for hearing in August 2007, the counsel for the appellant himself submitted before the first appellate court that the appeal may be rejected. Under the circumstances, the averments of the appellant in the affidavit cannot be correct. There is also no explanation for the delay from 31/01/2008 till 18/02/2008. In the above circumstances, there is no R.S.A. No. 212/ 2008 Page numbers just and sufficient cause for condonation of delay of 93 days in filing the appeal. In the result, refusing to condone the delay of as much as 93 days in filing the appeal, I dismiss this C.M. Application. Consequently, the Regular Second Appeal also stands dismissed. K.P. BALACHANDRAN, JUDGE scm