IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 19TH JUNE 2008 / 29TH JYAISHTA 1930 RSA.No. 295 of 2008 --------------------------------- AS.27/2001 of ADDL. DISTRICT COURT, PATHANAMTHITTA OS.499/1998 of M.C., PATHANAMTHITTA .................... APPELLANTS/DEFENDANTS: 1. ASSISTANT ENGINEER, PWD ROADS SECTION, KOZHENCHERRY. 2. EXECUTIVE ENGINEER, PWD ROADS DIVISION, PATHANAMTHITTA. 3. STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, PATHANAMTHITTA. BY GOVERNMENT PLEADER RESPONDENT/PLAINTIFF: SHERLY MATHEW, W/O.MONY MATHEW, ELAVUNILKUNNATHIL PRAKKANAM MURIE, CHENNEERKARA VILLAGE, KOZHENCHERRY. BY ADV. SRI.JACOB P.ALEX THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- C.M.Appl.No.241 of 2008 & R.S.A.No.295 of 2008 --------------------------- JUDGMENT This is an application filed by the appellants seeking for condonation of delay of 457 days in filing the appeal. In the affidavit filed by the Assistant Engineer, PWD Roads Section, Kozhencherry in support of the C.M. Application, it is stated that A.S.No.27/01 filed by the respondent was allowed in part by enhancing the compensation from Rs.20,000/- to Rs.50,500/- and that the appeal ought to have been filed on or before 29.5.2006, but the appeal could be filed only on 13.3.2008 with a delay of 457 days. According to him, the appellants could not notice the judgment in time, since they were ex parte in the suit and no notice was received in the appeal and further that due to administrative exigencies in the office of the appellants, some more delay had occurred in filing the appeal, after receipt of copy of the judgment. RSA 295/08 2 2. The counsel for the respondent, who has filed counter objecting to condonation of delay, submits that the averment that no notice was received in A.S.No.27/01 is false and that the Government Pleader had entered appearance on behalf of the respondents in the appeal, who are the present appellants. 3. If at all no notice in the first appeal was served on the respondents, they could have moved for re-hearing of the appeal before the first appellate court. There is no material for the appellants to substantiate that notice in the appeal had not been served. The deponent is the first respondent in the first appeal and he is not competent to swear as to whether respondents 2 and 3 did receive notice in the appeal. It is not stated anywhere in the affidavit as to when the appellants came to know of the judgment in A.S.No. 27/01. Further, apart from stating that due to administrative exigencies some more delay occurred in filing the appeal, there is no explanation as to RSA 295/08 3 what were the administrative exigencies and what was the delay that occurred on account of that and that can be understood only if it is disclosed as to when the appellants came to know of the judgment and decree passed by the first appellate court. Averments are made in the affidavit in such a way that the court will not be able to appreciate as to whether the condonation of delay of as much as 457 days in filing the appeal will be justified on the circumstances available. In the absence of disclosure of any of those circumstances, it has to be said that there is no just and sufficient cause to condone the delay of as much as 457 days in filing the appeal. In the result, refusing to condone the delay of as much as 457 days in filing the appeal, I dismiss this C.M. Application. Consequently, the Regular Second Appeal also stands dismissed. 19th June, 2008 (K.P.Balachandran, Judge) tkv