IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 26TH MAY 2008 / 5TH JYAISHTA 1930 RSA.No.445 of 2005 (C) --------------------------- A.S. No.131/1998 OF SUBORDINATE JUDGE, KOZHIKODE O.S. NO.161/95 OF MUNSIFF COURT, KOZHIKODE ------------ APPELLANT/RESPONDENT NO.1/DEFENDANT NO.1 ------------------------------------------------------------ MATHIRATT JAYARAJAN, S/O.CHIRUKANDAN, RESIDING AT MATHIRATT HOUSE, OLAVANNA AMSOM AND DESOM, KOZHIKODE TALUK. BY ADV. SRI.P.T.MOHANKUMAR RESPONDENTS: APPELLANTS/PLAINTIFFS AND THE R2/DEFENDANT -------------------------------------------------------------------------------- 1. KUNNATH NARAYAN NAMBIAR, RESIDING AT KUNNATH HOUSE, KADALUNDY AMSOM AND DESOM OF KOZHIKODE TALUK. 2. KUNNATH KAMAKSHY AMMA, REIDING AT KUNNATH HOUSE, KADALUNDY AMSOM AND DESOM OF KOZHIKODE. 3. KUNNATH AMMINIKUTTY AMMA, RESIDING AT KUNNATH HOUSE, KADALUNDY AMSOM AND DESOM OF KOZHIKODE TALUK. 4. KUNNATH VASUDEVAN NAMBIAR, RESIDING AT KUNNATH HOUSE, KADALUNDY AMSOM AND DESOM OF KOZHIKODE TALUK. 5. KUNATH AMMALUKUTTY AMMA, RESIDING AT KUNNATH HOUSE, KADALUNDY AMSOM AND DESOM OF KOZHIKODE TALUK. 6. KUNNATH PADMINI, RESIDING AT KUNNATH HOUSE, KADALUNDY AMSOM AND DESOM, OF KOZHIKODE TALUK. RSA.No.445 of 2005 (C) -2- 7. KUNNATH VENUGOPAL, RESIDING AT KUNNATH HOUSE, KADALUNDY AMSOM AND DESOM, OF KOZHIKODE TALUK. 8. KUNNATH VIJAYALAKSHMI, RESIDING AT KUNNATH HOUSE, KADALUNDY AMSOM AND DESOM, OF KOZHIKODE TALUK. 9. KUNNATH SUBADRA, RESIDING AT KUNNATH HOUSE, KADALUNDY AMSOM AND DESOM, OF KOZHIKODE TALUK. 10. KUNNATH PARVATHYKUTTY, RESIDING AT KUNNATH HOUSE, KADALUNDY AMSOM AND DESOM, OF KOZHIKODE TALUK. 11. KUNNATH RAJAN, RESIDING AT KUNNATH HOUSE, KADALUNDY AMSOM AND DESOM, OF KOZHIKODE TALUK. 12. KUNNATH SASIDHARAN, RESIDING AT KUNATH HOUSE, KADALUNDY AMSOM AND DESOM, KOZHIKODE TALUK. 13. KUNNATH ARAVINDAN, RESIDING AT KUNNATH HOUSE, KADALUNDY AMSOM DESOM OF KOZHIKODE TALUK. 14. KUNNATH VASUMATHY AMMA, RESIDING AT KUNNATH HOUSE, KADALUNDY AMSOM AND DESOM, OF KOZHIKODE TALUK. 15. KUNNATH PARVATHY AMMA, RESIDING AT KUNNATH HOUSE, KADALUNDY AMSOM AND DESOM, OF KOZHIKODE TALUK. 16. KUNNATH SATHEEDEVI, RESIDING AT KUNNATH HOUSE, KADALUNDY AMSOM AND DESOM, OF KOZHIKODE TALUK. 17. KUNNATH GIRIJA, RESIDING AT KUNNATH HOUSE, KADALUNDY AMSOM AND DESOM OF KOZHIKODE TALUK. 18. KUNNATH K.K. BALAMANI, RESIDING AT KUNNATH HOUSE, KADALUNDY AMSOM AND DESOM, OF KOZHIKODE TALUK. RSA.No.445 of 2005 (C) -3- 19. KUNNATH UNNIKRISHNAN, RESIDING AT KUNNATH HOUSE, KADALUNDY AMSOM AND DESOM, OF KOZHIKODE TALUK. 20. KUNNATH VENUGOPAL, RESIDING AT KUNNATH HOUSE, KADALUNDY AMSOM AND DESOM, OF KOZHIKODE TALUK. 21. T.LAKSHMANAN, THAIKKOOTTATHIL HOUSE, KADALUNDY AMSOM AND DESOM, KOZHIKODE TALUK. BY ADV. SRI.O.RAMACHANDRAN NAMBIAR FOR R7 & 11 SMT. T. MATHEW, SMT. GEETHA P. MENON, SRI. THOMAS ANTONY - R13 SRI.T.M.ABDUL LATIFF - R21 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ C. M. Appl. No.301 of 2005 & R. S. A. No.445 of 2005 ------------------------------------------------ Dated this the 26th day of May, 2008 JUDGMENT Counsel for the appellant is absent and there is not even representation for him. This case is posted in the defect list as respondents 1 and 3 in C.M. Appl. No.301/05 are already dead and steps are not taken to implead their LRs and steps are not taken for service of notice to R12, R16, R17 and R18. 2. It is seen that in C.M. Appl. No.301/05 the delay sought to be condoned is as much as 932 days in filing the appeal. The reasons stated by the appellant in the affidavit filed by him in support of C.M. Appl. No.301/05 are that the appeal was disposed of by the court below on 02/06/01; that he could apply for a certified copy of the judgment only on 20/08/01 viz. after two R. S. A. No.445 of 2005 -2- and a half months; that the copy was received by him only on 01/08/02 and he realised that the decree copy also is necessary only later and so he filed a copy application for the same on 05/10/02 and decree copy was received on 14/03/03; that after getting the copies the decree and judgment were entrusted to his lawyer's clerk at his office at Advocate's Clerk Association premises and there it got misplaced among other files; that in the meanwhile, he entered appearance in Second Appeal No.31/02 filed by the 21st respondent and he was under the bona fide belief that he could substantiate the case in the said second appeal that he got back the case bundles along with the certified copies of the decree and judgment only on 14/12/04 and made arrangements to file the appeal and thus, there is a delay of 932 days in filing the appeal and that the delay so occasioned is not R. S. A. No.445 of 2005 -3- wilful. 3. It is worthy to note that the appeal is filed only on 01/03/05, after two and a half months of his getting the case file as also copy of decree and judgment on 14/12/04. The affidavit is sworn by the appellant swearing that the case file was misplaced by his lawyer's clerk. There is no mention as to the name of the lawyer or the name of the clerk and there is no supporting affidavit of the clerk to the effect that he misplaced the file and rendered it impossible for the appellant to file appeal. The averments as above made by the appellant is behind the back of his advocate's clerk and the delay is as much as 932 days. I see no reason why the delay of as much as 932 days in filing the appeal is to be condoned so as to upset the rights that have accrued to the respondents without any just and sufficient cause to have R. S. A. No.445 of 2005 -4- the delay condoned. 4. In the result, refusing to condone the delay of 932 days in filing the appeal, I dismiss this C.M. Application. Consequently, the R.S.A also stands dismissed. K.P.BALACHANDRAN, JUDGE kns/-