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.877 of 2004 (D) ---------------------------- AS.22/2002 of I ADDL. DISTRICT COURT, KOLLAM OS.7/1994 of PRINCIPAL SUB COURT,KOLLAM .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------- M.B.MAHADEVAN PILLAI, S/O. GOPALA PILLAI AGED 64 YEARS, ADVOCATE RESIDING AT MOOLAKKAL, THIRUMULLAVARAM P.O., KOLLAM 12. BY ADV. SRI.C.RAJENDRAN SMT.V.SUMITA RESPONDENTS: RESPONDENTS/PLAINTIFF AND DEFENDANTS ------------------------------------------------------------------------ 1. P.O.GEORGE, S/O. LATE VARGHESE KOCHUMAN, RESIDING AT PLAVELIL SURENDRA BHAVAN, THEVALLY P.O., KOLLAM. 2. RINI GEORGE, RESIDING AT PLAVELIL SURENDRA BHAVAN, THEVALLY P.O., KOLLAM. 3. ROSSY REGORE, RESIDING AT PLAVELIL SURENDRA BHAVAN, THEVALLY P.O., KOLLAM. 4. REJI GEORGE, RESIDING AT PLAVELIL SURENDRA BHAVAN, THEVALLY P.O., KOLLAM. BY ADV. SRI.S.SHANAVAS KHAN 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.527 of 2004 & R. S. A. No.877 of 2004 ------------------------------------------------ Dated this the 10th day of July, 2008 JUDGMENT Notice was ordered on C.M. Application No.527/04 on 11/08/04. Notice issued to R1 was served and notices issued to R2 to R4 are returned with the endorsement “unclaimed”. Appellant has not taken any steps thereafter. Counsel for the appellant is not present either today though this case is posted in the defect list. Service to respondents 2 to 4 is declared sufficient suo motu for the purpose of the C.M. Application as notices were being returned unclaimed. Perused the application and the relevant records. 2. The prayer in the C.M. Application is to condone the delay of 76 days in filing the appeal. The judgment assailed is dt.21/11/03. Copy thereof was applied for on 22/11/03. R. S. A. No.877 of 2004 -2- Stamp papers called for on 05/02/04 were produced on 07/02/04 and copy of judgment was taken delivery of on 21/02/04. In the affidavit filed by the clerk of the counsel for the appellant in support of the application for condonation of delay the cause stated to condone the delay is explained as follows:- That there were three suits O.S. Nos.7/94, 48/97 and 49/97 which were disposed of by a common judgment by the Sub Court, Kollam; that A.S. Nos.21, 22 and 23 of 2002 were appeals filed against the decree and judgment in the above said suits; that all the appeals were dismissed by the District Court, Kollam on 21/11/03; that copy of judgment was ready on 20/02/04; that counsel for the appellant before the lower appellate court received the judgment on 21/02/04 and those were sent to Advocate Sri.C.Rajendran for R. S. A. No.877 of 2004 -3- filing Second Appeals that Advocate Sri.C.Rajendran entrusted the bundles containing the decrees and judgments with him on 18/05/04; that Advocate Sri.C.Rajendran is Senior Central Government Standing Counsel for CAT, Ernakulam Bench and he is having another clerk also by name Sri.Jothish; that Sri.Jothish misplaced the case bundles of these cases and kept it along with the cases of the CAT, Ernakulam Bench and after much effort the judgment and case bundles could be traced out on 29/07/04; that his Advocate prepared the appeal memorandum and the same was handed over to him only on 01/08/04 for filing the same before this Court and thus a delay of 76 days has been caused in filing the appeal and the said delay is not wilful and has to be condoned. 3. To put it briefly the case of the clerk who has filed the affidavit in support R. S. A. No.877 of 2004 -4- of the application is that his counsel entrusted the case files with him on 18/05/04; that it was misplaced by another clerk of the same lawyer and could be traced out only after two months and ten days. I do not find any just and sufficient cause to condone the delay. 4. At this stage counsel for the appellant rushes in and submits that the appellant is no more and his legal heirs have not come forward to have the appeal prosecuted and that therefore, this appeal is not pressed as he has no instructions. 5. In the result, I dismiss both the C.M. Application and the appeal. K.P.BALACHANDRAN, JUDGE kns/-