IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 10TH JULY 2008 / 19TH ASHADHA 1930 RSA.No.541 of 2008 (F) --------------------------- AS.109/2005 of ALL. DISTRICT COURT/SPECIAL COURT FOR NDPS ACT CASES, THODUPUZHA OS.657/1993 of SUB COURT,KATTAPPANA. .................... APPELLANT/RESPONDENTS/DEFENDANTS: -------------------------------------------------- 1. JAYAPRAKASH, S/O.LATE DEVASSY,ARANAKKAL DIVISION, ARANAKKAL ESTATE,VANDIPERIYAR KARA MANJUMALA VILLAGE 2. CHANDRABOSE, S/O.LATE DEVASSY, DO.DO. 3. INDIRA, D/O.LATE DEVASSY, DO.DO. BY ADV. SRI.A.C.DEVASIA RESPONDENT/APPELLANT/PLAINTIFF: ---------------------------------------------- THE MIDLAND RUBBER AND PRODUCE COMPANY LTD., REGISTERED OFFICE, 1-21/674- BEACH ROAD ALLEPPEY-12, REP. BY BY MANAGER ARANAKKAL ESTATE, VANDIPERIYAR KARA, MANJUMALA VILLAGE, IDUKKI THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ C. M. Application No.451 of 2008 & R. S. A. No.541 of 2008 ------------------------------------------------ Dated this the 10th day of July, 2008 JUDGMENT This is an application seeking condonation of delay of as much as 479 days in filing the R.S.A. 2. The judgment appealed against was pronounced on 21/08/06. Copy thereof was applied for on 26/08/06. Stamp papers called for on 30/09/06 were produced on 05/10/06 and copy of judgment was taken delivery of only on 28/10/06 though 13/10/06 was fixed as the date to appear and to receive copy. However, the appeal is filed only on 11/04/08 after more than one and a half years of receipt of copy of judgment for the purpose of appeal. 3. In the affidavit filed by the first appellant in support of the application for condonation of delay he has stated that second and third appellants are his brother and R. S. A. No.541 of 2008 -2- sister that before the lower appellate court the appeal was being conducted by their father and mother that after demise of their father the said case was conducted by mother and while the appeal was pending before the lower appellate court their mother also died; that they are living separately from the house of the mother and hence due to communication gap they were not aware of the judgment in the above appeal and that after receipt of notice from E.P.47/07 from the Sub Court, Kattappana they made enquiries about the appeal and only then they came to understand that the copy of judgment was already received and were with the lawyer's clerk and the said copies were misplaced due to oversight of the clerk and that was found out only on 08/04/08 and thus a delay of 479 days is caused in filing the R.S.A and that the delay has to be condoned. 4. It is worthy to note that the appellants are respondents 3 to 5 before the R. S. A. No.541 of 2008 -3- first appellate court. They cannot plead that they were not aware of the appeal. Further, it is seen that the first respondent who is their father is recorded dead in the judgment in A.S.109/05. The mother of the appellants who was the second respondent was not contesting the appeal and present appellants though were respondents 3 to 5 in A.S.109/05 respondents 3 and 5 did not contest and only the fourth respondent contested the case. The said fourth respondent is the second appellant. He has not even filed an affidavit in support of the delay condonation application. 5. In the averments in the affidavit of the first appellant, there is no mention at all as to when they received notice in the E.P; when they contacted the lawyer and made enquiries; as to when the copies were asked for from the clerk of the lawyer in the court below and how much time was taken by the lawyer's clerk to trace out the misplaced R. S. A. No.541 of 2008 -4- decree and judgment. On such vague averments by the first appellant who was not at all contesting the case giving any engagement to lawyer the delay of as much as 479 days in filing the R.S.A cannot be condoned even accepting the averments as such, as the averments do not make out just and sufficient cause to condone the delay of as much as 479 days and to disturb the finality of the judgment passed in favour of the respondents to whom rights have accrued as the decree in his favour was not appealed against within time. This C.M. Application is hence, devoid of merit and is dismissed. Consequently, the R.S.A also stands dismissed. K.P.BALACHANDRAN, JUDGE kns/-